Wednesday,

February 22, 2006

Part III

Department of
Defense
Department of the Army

32 CFR Part 518

The Freedom of Information Act
Program; Final Rule
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 9222 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations
DEPARTMENT OF DEFENSE
Department of the Army
32 CFR Part 518
RIN 0702–AA45
The Freedom of Information Act
Program
AGENCY: Department of the Army, DoD.
ACTION: Final Rule.
SUMMARY: The Department of the Army
is revising our rule in support of the
Freedom of Information Act as required
by public law and updating the
provisions for access and release of
information from all Army information
systems (automated and manual) that
further supports the Army’s Records
Management Program. This rule
finalizes the proposed rule that was
published in the Federal Register on
December 28, 2004.
DATES: Effective Date: March 24, 2006.
ADDRESSES: The Administrative
Assistant to the Secretary of the Army,
(AASA), The Records and Programs
Agency, (RPA), U.S. Army Freedom of
Information and Privacy Office, ATTN:
JDRP–RDF, Casey Bldg., Suite 144, 7701
Telegraph Road, Alexandria, VA 22315–
3905.
FOR FURTHER INFORMATION CONTACT: U.S.
Army Freedom of Information and
Privacy Office, (703) 428–6508.
SUPPLEMENTARY INFORMATION:
A. Background
In the December 28, 2004, issue of the
Federal Register, (69 FR 77836), the
Department of the Army issued a
proposed rule to revise 32 CFR 518.
This final rule prescribes procedures
and responsibilities of the Freedom of
Information Act, in accordance with the
Electronic Freedom of Information Act
(FOIA) Amendments of 1996. The
Electronic Freedom of Information Act
Amendments of 1996 changed the
response time from 10 to 20 days,
required Multitrack processing of FOIA
requests, required an Electronic FOIA
Reading Room, and changed the
requirements for the Annual Report and
the timetable for that report from
calendar to fiscal year. The Department
of the Army received responses from
two commenters. No substantial
changes are required at this time;
however proposed administrative
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changes were accepted and made to the
final rule. One commenter expressed
support for the proposed rule. The
second commenter proposed several
changes which would require the
revision of the Freedom of Information
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Act which is outside the scope of the
proposed rule.
B. Regulatory Flexibility Act
The Department of the Army has
determined that the Regulatory
Flexibility Act does not apply because
the rule does not have a significant
economic impact on a substantial
number of small entities within the
meaning to the Regulatory Flexibility
Act, 5 U.S.C. 601–612.
C. Paperwork Reduction Act
The Department of the Army has
determined that the Paperwork
Reduction Act does not apply because
the rule does not impose recordkeeping
or information collection requirements
from contractors or members of the
public.
D. Executive Order 12866
The Department of the Army has
determined that according to the criteria
defined in Executive Order 12866, this
rule is not a significant regulatory
action.
Donald C. Hakenson,
Acting Chief, U.S. Army Freedom of
Information and Privacy Office.
List of Subjects in 32 CFR Part 518
Freedom of Information Act.
Administrative practices and
procedures.
■ For the reasons stated in the preamble,
the Department of the Army revises 32
CFR part 518—The Army Freedom of
Information Act Program as follows:
PART 518—THE FREEDOM OF
INFORMATION ACT PROGRAM
Subpart A—General Provisions
Sec.
518.1 Purpose.
518.2 References.
518.3 Explanation of abbreviations and
terms.
518.4 Responsibilities.
518.5 Authority.
518.6 Public information.
518.7 FOIA terms defined.
518.8 Freedom of Information
requirements.
Subpart B—FOIA Reading Rooms
518.9 Reading room.
518.10 ‘‘(a)(2)’’ Materials.
518.11 Other materials.
Subpart C—Exemptions
518.12 General.
518.13 FOIA exemptions.
Subpart D—For Official Use Only
518.14 General.
Subpart E—Release and Processing
Procedures
518.15 General provisions.
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518.16 Initial determinations.
518.17 Appeals.
518.18 Judicial actions.
Subpart F—Fee Schedule
518.19 General provisions.
518.20 Collection of fees and fee rates.
518.21 Collection of fees and fee rates for
technical data.
Subpart G—Reports
518.22 Reports control.
518.23 Annual report content.
Appendices to Part 518
Appendix A to Part 518—References.
Appendix B to Part 518—Addressing FOIA
Requests.
Authority: 5 U.S.C. 551, 552, 552a, 5101–
5108, 5110–5113, 5115, 5332–5334, 5341–42,
5504–5509, 7154; 10 U.S.C. 130, 1102, 2320–
2321, 2328; 18 U.S.C. 798, 3500; 31 U.S.C.
3710; 35 U.S.C. 181–188; 42 U.S.C. 2162; 44
U.S.C. 33; and Executive Order 12600.
Subpart A—General provisions
§ 518.1 Purpose.
This part provides policies and
procedures for implementation of the
Freedom of Information Act (5 U.S.C.
552, as amended) and Department of
Defense Directive (DoDD) 5400.7 and
promotes uniformity in the Department
of Defense (DoD) Freedom of
Information Act (FOIA) Program. This
Army regulation implements provisions
for access and release of information
from all Army information systems
(automated and manual) in support of
Army Information Management (AR 25–
1).
§ 518.2 References.
Required and related publications are
listed in Appendix A of this part.
§ 518.3 Explanation of abbreviations and
terms.
Abbreviations and special terms used
in this part are explained in the glossary
of AR 25–55.
§ 518.4 Responsibilities.
(a) The Administrative Assistant to
the Secretary of the Army (AASA) is
responsible for issuing policy and
establishing guidance for the Army
FOIA Program. AASA has the
responsibility to approve exceptions to
this regulation that are consistent with
controlling law and regulations. AASA
may delegate the approval authority, in
writing, to a division chief, under its
supervision, within that agency in the
grade of O6 or civilian equivalent.
(b) The Administrative Assistant to
the Secretary of the Army, (AASA), The
Records and Programs Agency, (RPA),
Records Management and
Declassification Agency (RMDA), is
responsible for developing and
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recommending policy to AASA
concerning the Army FOIA program and
overall execution of the program under
the policy and guidance of AASA.
(c) The Chief of Information Officer
(CIO), G6 will provide oversight of the
FOIA program as necessary in
compliance with Federal Statutes,
regulations, Office of Management and
Budget (OMB), and the Office of
Secretary of Defense (OSD).
(d) Heads of Army Staff agencies, field
operating agencies, major Army
commands (MACOMS), and subordinate
commands are responsible for the
supervision and execution of the FOIA
program in functional areas and
activities under their command.
(e) Heads of Joint Service agencies or
commands for which the Army is the
Executive Agent, or otherwise has
responsibility for providing fiscal,
logistical, or administrative support,
will adhere to the policies and
procedures in this regulation.
(f) Commander, Army and Air Force
Exchange Service (AAFES), is
responsible for the supervision of the
FOIA program within that command
pursuant to this part.
§ 518.5 Authority.
(a) This part governs written FOIA
requests from members of the public. It
does not preclude the release of
personnel or other records to agencies or
individuals in the Federal Government
for use in official work.
(b) Soldiers and civilian employees of
the Department of the Army (DA) may,
as private citizens, request DA or other
agencies’ records under the FOIA. They
must prepare requests at their own
expense and on their own time. They
may not use Government equipment,
supplies, or postage to prepare personal
FOIA requests. It is not necessary for
soldiers or civilian employees to go
through the chain of command to
request information under the FOIA.
(c) Requests for DA records processed
under the FOIA may be denied only in
accordance with the FOIA (5 U.S.C.
552(b)), as implemented by this part.
Guidance on the applicability of the
FOIA is also found in the Federal
Acquisition Regulation (FAR).
(d) Release of some records may also
be affected by the programs that created
them. They are discussed in the
following regulations:
(1) AR 20–1 (Inspector General
activities and procedures);
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(2) AR 27–10 (military justice);
(3) AR 27–20 (claims);
(4) AR 27–40 (litigation: release of
information and appearance of
witnesses);
(5) AR 27–60 (intellectual property);
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(6) AR 36–2 (Government Accounting
Office audits);
(7) AR 40–66, AR 40–68, and AR 40–
400 (medical records);
(8) AR 70–31 (technical reports);
(9) AR 20–1, AR 385–40 and DA Pam
385–40 (aircraft accident investigations);
(10) AR 195–2 (criminal investigation
activities);
(11) AR 190–45 (Military Police
records and reports);
(12) AR 360–1 (Army public affairs:
public information, general policies on
release of information to the public);
(13) AR 380–5 and DoD 5200.1–R
(national security classified
information);
(14) AR 380–5 paragraph 7–101e
(policies and procedures for allowing
persons outside the Executive Branch to
do unofficial historical research in
classified Army records);
(15) AR 380–10 (Technology Transfer
for disclosure of information and
contacts with foreign representatives;
(16) AR 381–45 (U.S. Army
Intelligence and Security Command
investigation files);
(17) AR 385–40 (safety reports and
records);
(18) AR 600–8–104 (military
personnel information management
records);
(19) AR 600–85 (alcohol and drug
abuse records);
(20) AR 608–19 (family advocacy
records); and
(21) AR 690 (series civilian personnel
records, FAR, DoD Federal Acquisition
Regulation Supplement (DFARS) and
the Army Federal Acquisition
Regulation Supplement (AFARS)
procurement matters).
§ 518.6 Public information.
(a) Public information. The public has
a right to information concerning the
activities of its Government. Army
policy is to conduct its activities in an
open manner and provide the public
with a maximum amount of accurate
and timely information concerning its
activities, consistent always with the
legitimate public and private interests of
the American people. A record
requested by a member of the public
who follows rules established by proper
authority in DA shall not be withheld in
whole or in part unless the record is
exempt from mandatory partial or total
disclosure under the FOIA. As a matter
of policy, Army activities shall make
discretionary disclosures of exempt
records or information only after full
and deliberate consideration of the
institutional, commercial, and personal
privacy interests that could be
implicated by disclosure of the
information. Activities must be
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9223
prepared to present a sound legal basis
in support of their determinations. In
order that the public may have timely
information concerning Army activities,
records requested through public
information channels by news media
representatives that would not be
withheld if requested under the FOIA
should be released upon request.
Prompt responses to requests for
information from news media
representatives should be encouraged to
eliminate the need for these requesters
to invoke the provisions of the FOIA
and thereby assist in providing timely
information to the public. Similarly,
requests from other members of the
public for information that would not be
withheld under the FOIA should
continue to be honored through
appropriate means without requiring the
requester to invoke the FOIA.
(b) FOIA handbook. The Department
of the Army Freedom of Information
Act/Privacy Act (DA FOIA/PA) Office
shall prepare, in addition to FOIA
regulations, a handbook for the use of
the public in obtaining information from
its organizations. This handbook will be
a short, simple explanation of what the
FOIA is designed to do, and how a
member of the public can use it to
access government records. The DA
FOIA/PA Office handbook will explain
the types of records that can be obtained
through FOIA requests, why some
records cannot, by law, be made
available, and how the Army activity
determines whether or not the record
can be released. The handbook will also
explain how to make a FOIA request,
how long the requester can expect to
wait for a reply, and appeal rights. The
handbook will supplement other
information locator systems, such as the
Government Information Locator
Service (GILS), and explain how a
requester can obtain more information
about those systems. The handbook will
be available on paper and through
electronic means and contain the
following additional information,
complete with electronic links to the
below elements: the location of reading
room and the types and categories of
information available; the location of
the World Wide Web page; a reference
to the Army FOIA regulation and how
to obtain a copy; a reference to the Army
FOIA annual report and how to obtain
a copy; and the location of the GILS
page. The DA FOIA handbook, ‘‘A
Citizen’s Guide to Request Army
Records Under the Freedom of
Information Act (FOIA),’’ can be
accessed on-line at http://
www.rmda.belvoir.army.mil/. ‘‘The
Major Automated Information Systems
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Descriptions’’ can be accessed at
http://www.defenselink.mil/pubs/foi.
(c) Control system. A request for
records that invokes the FOIA shall
enter a formal control system designed
to ensure accountability and compliance
with the FOIA. Any request for Army
records that either explicitly or
implicitly cites the FOIA shall be
processed under the provisions of this
part, unless otherwise required.
§ 518.7 FOIA terms defined.
(a) FOIA request. A written request for
Army records that reasonably describes
the record(s) sought, made by any
person, including a member of the
public (U.S. or foreign citizen/entity), an
organization, or a business, but not
including a Federal Agency or a fugitive
from the law, that either explicitly or
implicitly invokes the FOIA, DoDD
5400.7, DoD 5400.7–R, this part, or
Army Activity supplementing
regulations or instructions. All
requesters should also indicate a
willingness to pay fees associated with
the processing of their request.
Requesters may ask for a waiver of fees,
but should also express a willingness to
pay fees in the event of a waiver denial.
Written requests may be received by
postal service or other commercial
delivery means, by facsimile, or
electronically (such as e-mail). Requests
received by facsimile or electronically
must have a postal mailing address
included since it may not be practical to
provide a substantive response
electronically. The request is considered
properly received, or perfected, when
the conditions in this paragraph have
been met and the request arrives at the
FOIA office of the Activity in possession
of the records.
(b) Agency record. The products of
data compilation, such as all books,
papers, maps, photographs, and
machine readable materials, inclusive of
those in electronic form or format, or
other documentary materials, regardless
of physical form or characteristics, made
or received by an agency of the United
States Government under Federal law in
connection with the transaction of
public business and in DA possession
and control at the time the FOIA request
is made.
(1) The following are not included
within the definition of the word
‘‘record’’: Objects or articles, such as
structures, furniture, vehicles and
equipment, whatever their historical
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value, or value as evidence; Anything
that is not a tangible or documentary
record, such as an individual’s memory
or oral communication; Personal records
of an individual not subject to agency
creation or retention requirements,
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created and maintained primarily for
the convenience of an agency employee,
and not distributed to other agency
employees for their official use.
Personal papers fall into three
categories: Those created before entering
Government service; private materials
brought into, created, or received in the
office that were not created or received
in the course of transacting Government
business; and work-related personal
papers that are not used in the
transaction of Government business in
accordance with Public Law 86–36,
National Security Information
Exemption.
(2) A record must exist and be in the
possession and control of DA at the time
of the request to be considered subject
to this part and the FOIA. There is no
obligation to create or compile a record
to satisfy a FOIA request.
(3) Hard copy or electronic records
that are subject to FOIA requests under
5 U.S.C. 552 (a)(3), and that are
available to the public through an
established distribution system such as
the Government Printing Office (GPO),
Federal Register, National Technical
Information Service (NTIS), or the
Internet, normally need not be
processed under the provisions of the
FOIA. If a request is received for such
information, Army Activities shall
provide the requester with guidance,
inclusive of any written notice to the
public, on how to obtain the
information. However, if the requester
insists that the request be processed
under the FOIA, then the request shall
be processed under the FOIA. If there is
any doubt as to whether the request
must be processed, contact DA, FOIA/
PA Office.
(c) Army activity. A specific area of
organizational or functional
responsibility within DA, authorized to
receive and act independently on FOIA
requests.
(d) Initial denial authority (IDA). An
official who has been granted authority
by the Secretary of the Army to deny
records requested under the FOIA based
on one or more of the nine categories of
exemptions from mandatory disclosure.
An IDA also: Denies a fee category claim
by a requester; denies a request for
expedited processing due to
demonstrated compelling need; denies a
request for a waiver or reduction of fees;
reviews a fee estimate; and confirms
that no records were located in response
to a request.
(e) Appellate authority. The Secretary
of the Army or designee having
jurisdiction for this purpose over the
record, or any of the other adverse
determinations. The DA appellate
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authority is the Office of the Army
General Counsel (OGC).
(f) Administrative appeal. A request
by a member of the general public, made
under the FOIA, asking the appellate
authority of the Army to reverse a
decision to: Withhold all or part of a
requested record; deny a fee category
claim by a requester; deny a request for
expedited processing due to
demonstrated compelling need; deny a
request for waiver or reduction of fees;
deny a request to review an initial fee
estimate; and confirm that no records
were located during the initial search.
Requesters also may appeal the failure
to receive a response determination
within the statutory time limits, a fee
estimate, and any determination that the
requester believes is adverse in nature.
(g) Public interest. The interest in
obtaining official information that sheds
light on an activity’s performance of its
statutory duties because the information
falls within the statutory purpose of the
FOIA to inform citizens about what
their Government is doing. That
statutory purpose, however, is not
fostered by disclosure of information
about private citizens accumulated in
various governmental files that reveals
nothing about an agency’s or official’s
own conduct.
(h) Electronic record. Records
(including e-mail) that are created,
stored, and retrievable by electronic
means.
(i) Federal agency. As defined by 5
U.S.C. 552 (f)(1), a Federal agency is any
executive department, military
department, Government corporation,
Government controlled corporation, or
other establishment in the executive
branch of the Government (including
the Executive Office of the President), or
any independent regulatory agency.
(j) Law enforcement investigation. An
investigation conducted by a command
or activity for law enforcement purposes
relating to crime, waste, fraud or
national security. Such investigations
may include gathering evidence for
criminal prosecutions and for civil or
regulatory proceedings.
§ 518.8 Freedom of Information
requirements.
(a) Compliance with the FOIA. Army
personnel are expected to comply with
the FOIA, this part, and Army FOIA
policy in both letter and spirit. This
strict adherence is necessary to provide
uniformity in the implementation of the
Army FOIA Program and to create
conditions that will promote public
trust.
(b) Openness with the public. The DA
shall conduct its activities in an open
manner consistent with the need for
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security and adherence to other
requirements of law and regulation.
Records not specifically exempt from
disclosure under the Act shall, upon
request, be made readily accessible to
the public in accordance with rules
promulgated by competent authority,
whether or not the Act is invoked.
(1) Operations Security (OPSEC). DA
officials who release records under the
FOIA must also consider OPSEC. The
Army implementing directive is AR
530–1.
(2) DA Form 4948–R. This form lists
references and information frequently
used for FOIA requests related to
OPSEC. Persons who routinely deal
with the public (by telephone or letter)
on such requests should keep the form
on their desks as a guide.
(c) Avoidance of procedural obstacles.
Army Activities shall ensure that
procedural matters do not unnecessarily
impede a requester from obtaining DA
records promptly. The Army shall
provide assistance to requesters to help
them understand and comply with
procedures established by this part and
any supplemental regulations published
by the Army Activities. Coordination of
referral of requests with DA FOIA/PA
Office should be made telephonically in
order to respond to the requester in a
timelier manner. Requests will not be
mailed to the DA FOIA/PA Office for
disposition or coordination with other
IDAs.
(d) Prompt action on requests and
final response determinations.
Generally, when a member of the public
complies with the procedures
established in this part or instructions
for obtaining DA records, and after the
request is received by the official
designated to respond, Army Activities
shall endeavor to provide a final
response determination within the
statutory 20 working days. If a
significant number of requests, or the
complexity of the requests prevent a
final response determination within the
statutory time period, Army Activities
shall advise the requester of this fact,
and explain how the request will be
responded to within its multitrack
processing system. A final response
determination is notification to the
requester that the records are released or
partially released, or will be released on
a certain date, or the records are
withheld under an appropriate FOIA
exemption, or the records cannot be
provided for one or more of the other
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reasons. Interim responses
acknowledging receipt of the request,
negotiations with the requester
concerning the scope of the request, the
response timeframe, and fee agreements
are encouraged; however, such actions
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do not constitute a final response
determination pursuant to the FOIA. If
a request fails to meet minimum
requirements as set forth, Activities
shall contact the requester and inform
the requester what would be required to
perfect or correct the request, or to limit
the scope to allow for the most
expeditious response. The statutory 20
working day time limit applies upon
receipt of a perfected or correct FOIA
request. Before mailing a final response
determination and those records or
portions thereof deemed releasable,
records custodians will obtain a written
legal opinion from their servicing judge
advocate concerning the releasibility of
the requested records. The legal opinion
must cite specific exemptions,
appropriate justification, and identify if
the records were processed under the
FOIA, PA (including the applicable
systems notice), or both.
(1) Multi-track processing. When an
Army Activity has a significant number
of pending requests that prevents a
response determination being made
within 20 working days, the requests
shall be processed in a multitrack
processing system, based on the date of
receipt, the amount of work and time
involved in processing the requests, and
whether the request qualifies for
expedited processing. Army Activities
may establish as many processing
queues as they wish; however, as a
minimum, three processing tracks shall
be established, all based on a first-in,
first-out concept, and rank ordered by
the date of receipt of the request. One
track shall be a processing queue for
simple requests, one track for complex
requests, and one track shall be a
processing queue for expedited
processing. Determinations as to
whether a request is simple or complex
shall be made by each Army Activity.
Army Activities shall provide a
requester whose request does not
qualify for the fastest queue an
opportunity to limit the scope of the
request in order to qualify for the fastest
queue. This multitrack processing
system does not obviate an Activity’s’
responsibility to exercise due diligence
in processing requests in the most
expeditious manner possible.
(2) Expedited processing. A separate
queue shall be established for requests
meeting the test for expedited
processing. Expedited processing shall
be granted to a requester after the
requester requests such and
demonstrates a compelling need for the
information. Notice of the determination
as to whether to grant expedited
processing in response to a requester’s
compelling need shall be provided to
the requester within 10 calendar days
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9225
after receipt of the request in the Army
Activity’s office that will determine
whether to grant expedited processing.
Once the Army Activity has determined
to grant expedited processing, the
request shall be processed as soon as
practicable. Actions by Army Activities
to initially deny or affirm the initial
denial on appeal of a request for
expedited processing and a failure to
respond in a timely manner shall be
subject to judicial review. Initial
determination of denials of expedited
processing will be immediately
forwarded to the IDA for action. If the
IDA upholds the denial, the requester
will be informed of his or her right to
appeal.
(i) Imminent threat. Compelling need
means that the failure to obtain the
records on an expedited basis could
reasonably be expected to pose an
imminent threat to the life or physical
safety of an individual.
(ii) Alleged Federal Government
activity. Compelling need also means
that the information is urgently needed
by an individual primarily engaged in
disseminating information in order to
inform the public concerning actual or
alleged Federal Government activity. An
individual primarily engaged in
disseminating information means a
person whose primary activity involves
publishing or otherwise disseminating
information to the public.
Representatives of the news media
would normally qualify as individuals
primarily engaged in disseminating
information. Other persons must
demonstrate that their primary activity
involves publishing or otherwise
disseminating information to the public.
(iii) General public interest. Urgently
needed means that the information has
a particular value that will be lost if not
disseminated quickly. Ordinarily this
means a breaking news story of general
public interest. However, information of
historical interest only or information
sought for litigation or commercial
activities would not qualify, nor would
a news media publication or broadcast
deadline unrelated to the news breaking
nature of the information.
(iv) Certified statement. A
demonstration of compelling need by a
requester shall be made by a statement
certified by the requester to be true and
correct to the best of his or her
knowledge. This statement must
accompany the request in order to be
considered and responded to within the
10 calendar days required for decisions
on expedited access.
(v) Other reasons for expedited
processing. Another reason that merits
expedited processing by Army FOIA
offices is an imminent loss of
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substantial due process rights. A
demonstration of imminent loss of
substantial due process rights shall be
made by a statement certified by the
requester to be true and correct to the
best of his or her knowledge. The
statement mentioned in paragraph (iv)
of this section must accompany the
request in order to be considered and
responded to within the 10 calendar
days required for decisions on
expedited access. Once the decision has
been made to expedite the request for
this reason, the request may be
processed in the expedited processing
queue behind those requests qualifying
for compelling need.
(vi) Administrative appeals. These
same procedures also apply to requests
for expedited processing of
administrative appeals.
(e) Use of exemptions. It is Army
policy to make records publicly
available, unless the record qualifies for
exemption under one or more of the
nine exemptions. Discretionary releases
of information protected under the
FOIA should be made only after full and
deliberate consideration of the
institutional, commercial, and personal
privacy interests that could be
implicated by disclosure of the
information. When Army activities
determine to withhold information
using one of the nine exemptions, the
Department of Justice (DOJ) will defend
the position unless it is found to be
lacking a Sound Legal Basis for denial.
(1) Parts of a requested record may be
exempt from disclosure under the FOIA.
The proper DA official may delete
exempt information and release the
remainder to the requester. The proper
official also has the discretion under the
FOIA to release exempt information
when appropriate; he or she must
exercise this discretion in a reasonable
manner, within regulations consistent
with current policy considerations. The
excised copies shall clearly reflect the
denied information by the use of
brackets, indicating the removal of
information. Bracketed areas must be
sufficiently removed so as to reveal no
information. The best means to ensure
illegibility is to cut out the information
from a copy of the document and
reproduce the appropriate pages.
(2) If the document is declassified, all
classification markings shall be lined
through with a single black line, which
will allow the markings to be read. The
document shall then be stamped
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‘‘Unclassified.’’
(f) Public domain. Nonexempt records
released under the authority of this part
are considered to be in the public
domain. Such records may also be made
available in the DA reading room in
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paper form, as well as electronically, to
facilitate public access. Exempt records
disclosed without authorization by the
appropriate Army FOIA official do not
lose their exempt status. Also, while
authority may exist to disclose records
to individuals in their official capacity,
the provisions of this part apply if the
same individual seeks the records in a
private or personal capacity.
(g) Creating a record. A record must
exist and be in the possession and
control of DA at the time of the search
to be considered subject to this part and
the FOIA. There is no obligation to
create or compile a record to satisfy a
FOIA request. An Army Activity,
however, may compile a new record
when so doing would result in a more
useful response to the requester, or be
less burdensome to the agency than
providing existing records, and the
requester does not object. Cost of
creating or compiling such a record may
not be charged to the requester unless
the fee for creating the record is equal
to or less than the fee that would be
charged for providing the existing
record. Fee assessments shall be in
accordance with subpart F of this part.
(1) Concerning electronic data, the
issue of whether records are actually
created or merely extracted from an
existing database is not always readily
apparent. Consequently, when
responding to FOIA requests for
electronic data where creation of a
record, programming, or particular
format are questionable, Army Activities
should apply a standard of
reasonableness.
(2) If the capability exists to respond
to the request, and the effort would be
a business as usual approach, then the
request should be processed. However,
the request need not be processed where
the capability to respond does not exist
without a significant expenditure of
resources, thus not being a normal
business as usual approach. As used in
this sense, a significant expenditure of
resources in both time and/or
manpower that would cause a
significant interference with the
operation of the Army Activity’s
automated information system would
not be a business as usual approach.
(h) Description of requested record.
Identification of the record desired is
the responsibility of the requester. The
requester must provide a description of
the desired record that enables the
Government to locate the record with a
reasonable amount of effort. In order to
assist Army Activities in conducting
more timely searches, requesters should
endeavor to provide as much identifying
information as possible. When an Army
Activity receives a request that does not
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reasonably describe the requested
record, it shall contact the requester and
afford the requester the opportunity to
perfect the request. Army Activities are
not obligated to act on the request until
the requester perfects the request. When
practicable, Army Activities shall
contact the requester to aid in
identifying the records sought and in
reformulating the request to reduce the
burden on the agency in complying with
the Act. DA FOIA officials will reply to
unclear requests by: Describing the
defects in the requests; explaining the
types of information described below,
and ask the requester for such
information; and explaining that no
action will be taken on the request until
the requester replies to the letter.
(1) The following guidelines are
provided to deal with generalized
requests and are based on the principle
of reasonable effort. Descriptive
information about a record may be
divided into two broad categories:
Category I is file-related and includes
information such as type of record (for
example, memorandum), title, index
citation, subject area, date of record
creation, and originator; Category II is
event-related and includes the
circumstances that resulted in the
record being created or the date and
circumstances surrounding the event
the record covers.
(2) Generally, a record is not
reasonably described unless the
description contains sufficient Category
I information to permit an organized,
non random search based on the Army
Activity’s filing arrangements and
existing retrieval systems, or unless the
record contains sufficient Category II
information to permit an inference of
the Category I elements needed to
conduct such a search.
(3) The following guidelines deal with
requests for personal records.
Ordinarily, when personal identifiers
are provided only in connection with a
request for records concerning the
requester, only records in a PA system
of records that can be retrieved by
personal identifiers need be searched.
However, if an Army Activity has
reason to believe that records on the
requester may exist in a record system
other than a PA system, the Army
Activity shall search that system under
the provisions of the FOIA. In either
case, Army Activities may request a
reasonable description of the records
desired before searching for such
records under the provisions of the
FOIA and the PA. If the record is
required to be released under the FOIA,
the Privacy Act does not bar its
disclosure.
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(4) The previous guidelines
notwithstanding, the decision of the
Army Activity concerning
reasonableness of description must be
based on knowledge of its files. If the
description enables Army Activity
personnel to locate the record with
reasonable effort, the description is
adequate. The fact that a FOIA request
is broad or burdensome in its magnitude
does not, in and of itself, entitle an
Army Activity to deny the request on
the ground that it does not reasonably
describe the records sought. The key
factor is the ability of the Army
Activity’s staff to reasonably ascertain
and locate which records are being
requested.
(i) Referrals. The Army FOIA referral
policy is based upon the concept of the
originator of a record making a release
determination on its information. If an
Army Activity receives a request for
records originated by another Army
Activity, it will contact the Army
Activity to determine if it also received
the request, and if not, obtain
concurrence from the other Army
Activity to refer the request. An Army
Activity shall refer a FOIA request for a
classified record that it holds to another
Army Activity, DoD Component, or
agency outside the DoD, if the record
originated in another Army Activity or
DoD Component or outside agency, or if
the classification is derivative. In this
situation, provide the record and a
release recommendation on the record
with the referral action. In either
situation, the requester shall be advised
of the action taken, unless exempt
information would be revealed. While
referrals to originators of information
result in obtaining the best possible
decision on release of the information,
the policy does not relieve Army
Activities from the responsibility of
making a release decision on a record
should the requester object to referral of
the request and the record. Should this
situation occur, Army Activities shall
still coordinate with the originator of
the information prior to making a
release determination. A request
received by an Army Activity having no
records responsive to a request shall be
referred routinely to another Army
Activity, if the other Army Activity has
reason to believe it has the requested
records. Prior to notifying a requester of
a referral to another Army Activity, the
Army Activity receiving the initial
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request shall consult with the other
Army Activity to determine if that Army
Activity’s association with the material
is exempt. If the association is exempt,
the Army Activity receiving the initial
request will protect the association and
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any exempt information without
revealing the identity of the protected
Army Activity. The protected Army
Activity should be responsible for
submitting the justifications required in
any litigation. Any Army Activity
receiving a request that has been
misaddressed shall refer the request to
the proper address and advise the
requester. Army Activities making
referrals of requests for records shall
include with the referral, a point of
contact by name, a telephone number,
and an e-mail address. If the office
receiving the FOIA request does not
know where the requested records are
located, that activity will contact the
DA, FOIA/PA Office, to determine the
office where the request should be
referred.
(1) An Army Activity shall refer for
response directly to the requester a
FOIA request for a record that it holds
to another Army Activity or agency
outside the Army, if the record
originated in the other Army Activity or
outside agency. Whenever a record or a
portion of a record is referred to another
Army Activity or to a Government
Agency outside of the Army for a release
determination and direct response, the
requester shall be informed of the
referral, unless it has been determined
that notification would reveal exempt
information. Referred records shall only
be identified to the extent consistent
with security requirements.
(2) An Army Activity may refer a
request for a record that it originated to
another Army Activity or agency when
the other Army Activity or agency has
a valid interest in the record, or the
record was created for the use of the
other Army Activity or agency. In such
situations, provide the record and a
release recommendation on the record
with the referral action. Include a point
of contact with the telephone number.
An example of such a situation is a
request for audit reports prepared by the
U.S. Army Audit Agency. These
advisory reports are prepared for the use
of contracting officers and their release
to the audited contractor shall be at the
discretion of the contracting officer. A
FOIA request shall be referred to the
appropriate Army Activity and the
requester shall be notified of the
referral, unless exempt information
would be revealed. Another example is
a record originated by an Army Activity
or agency that involves foreign relations,
and could affect an Army Activity or
organization in a host foreign country.
Such a request and any responsive
records may be referred to the affected
Army Activity or organization for
consultation prior to a final release
determination within DA.
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9227
(3) Within DA, an Army Activity shall
ordinarily refer a FOIA request and a
copy of the record it holds but that
originated with another Army Activity
or that contains substantial information
obtained from another Army Activity, to
that Activity for direct response, after
direct coordination and obtaining
concurrence from the Activity. The
requester then shall be notified of such
referral. Army Activities shall not, in
any case, release or deny such records
without prior consultation with the
other Army Activity.
(4) Army Activities that receive
referred requests shall answer them in
accordance with the time limits
established by the FOIA, this part, and
their multitrack processing queues,
based upon the date of initial receipt of
the request at the referring Activity or
agency.
(5) Agencies outside DA that are
subject to the FOIA.
(i) An Army Activity may refer a
FOIA request for any record that
originated in an agency outside DA or
that is based on information obtained
from an outside agency to the agency for
direct response to the requester after
coordination with the outside agency, if
that agency is subject to FOIA.
Otherwise, the Army Activity must
respond to the request.
(ii) An Army Activity shall refer to the
agency that provided the record any
FOIA request for investigative,
intelligence, or any other type of records
that are on loan to DA for a specific
purpose, if the records are restricted
from further release and so marked.
However, if for investigative or
intelligence purposes, the outside
agency desires anonymity, an Army
Activity may only respond directly to
the requester after coordination with the
outside agency.
(6) Army Activities that receive
requests for records of the National
Security Council (NSC), the White
House, or the White House Military
Office (WHMO) shall process the
requests. Army records in which the
NSC or White House has a concurrent
reviewing interest, and NSC, White
House, or WHMO records discovered in
Army Activity’s files shall be forwarded
through DA, FOIA/PA Office, to the
Washington Headquarters Services,
Office For Freedom of Information and
Security Review (OFOISR). The OFOISR
shall coordinate with the NSC, White
House, or WHMO and return the records
to the originating agency after
coordination.
(7) To the extent referrals are
consistent with the policies expressed
by this section, referrals between offices
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of the same Army Activity are
authorized.
(8) On occasion, the DA receives
FOIA requests for Government
Accountability Office (GAO) records
containing Army information. Even
though the GAO is outside the
Executive Branch, and not subject to the
FOIA, all FOIA requests for GAO
documents containing Army
information received either from the
public or on referral from the GAO shall
be processed under the provisions of the
FOIA.
(j) Authentication. Records provided
under this part shall be authenticated
with an appropriate seal, whenever
necessary, to fulfill an official
Government or other legal function.
This service, however, is in addition to
that required under the FOIA and is not
included in the FOIA fee schedule.
Army Activities may charge for the
service at a rate of $5.20 for each
authentication.
(k) Records management. FOIA
records shall be maintained and
disposed of in accordance with the
National Archives and Records
Administration (NARA) General
Records Schedule and DoD Component
records schedules.
(l) Record-keeping requirements in
accordance with the Army Records
Information Management System
(ARIMS). The records listed below are
required by ARIMS in the conduct of
the daily business of the Army to
provide adequate and proper
documentation to protect the rights and
interests of individuals and the Federal
Government. The full description of the
records and their disposition is found at
https://www2.arims.army.mil.
(1) FOIA requests, access, and denials;
(2) FOIA administrative files;
(3) FOIA appeals;
(4) FOIA controls;
(5) FOIA reports;
(6) Access to information files;
(7) Safeguarded nondefense
information releases;
(8) Nonsafeguarded information
releases;
(9) Unauthorized disclosure reports;
(10) Acknowledgement; and
(11) Initial Denial Authority
designations/appointments.
(m) Relationship between the FOIA
and the Privacy Act (PA). Not all
requesters are knowledgeable of the
appropriate statutory authority to cite
when requesting records, nor are all of
them aware of appeal procedures. In
hsrobinson on PROD1PC70 with RULES2
some instances, they may cite neither
Act, but will imply one or both Acts.
For these reasons, the below guidelines
are provided to ensure that requesters
receive the greatest amount of access
rights under both Acts.
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(1) If the record is required to be
released under the FOIA, the PA does
not bar its disclosure. Unlike the FOIA,
the PA applies only to U.S. citizens and
aliens lawfully admitted for permanent
residence.
(2) Requesters who seek records about
themselves contained in a PA system of
records and who cite or imply only the
PA, will have their requests processed
under the provisions of both the PA and
the FOIA. If the PA system of records is
exempt from the provisions of 5 U.S.C.
552a(d)(1) and if the records, or any
portion thereof, are exempt under the
FOIA, the requester shall be so advised
with the appropriate PA and FOIA
exemption. Appeals shall be processed
under both Acts.
(3) Requesters who seek records about
themselves that are not contained in a
Privacy Act system of records and who
cite or imply the PA will have their
requests processed under the provisions
of the FOIA, since the PA does not
apply to these records. Appeals shall be
processed under the FOIA.
(4) Requesters who seek records about
themselves that are contained in a PA
system of records and who cite or imply
the FOIA or both Acts will have their
requests processed under the provisions
of both the PA and the FOIA. If the PA
system of records is exempt from the
provisions of 5 U.S.C. 552a(d)(1) and if
the records, or any portion thereof, are
exempt under the FOIA, the requester
shall be so advised with the appropriate
PA and FOIA exemption. Appeals shall
be processed under both Acts.
(5) Requesters who seek access to
agency records that are not part of a PA
system of records, and who cite or
imply the PA and FOIA, will have their
requests processed under the FOIA
since the PA does not apply to these
records. Appeals shall be processed
under the FOIA. Requesters who seek
access to agency records and who cite
or imply the FOIA will have their
requests and appeals processed under
the FOIA.
(6) Requesters shall be advised in the
final response letter, which Act(s) was
(were) used, inclusive of appeal rights
as outlined in paragraphs (m)(1) through
(5) of this section.
(n) Non-responsive information in
responsive records. Army Activities
shall interpret FOIA requests liberally
when determining which records are
responsive to the requests, and may
release non-responsive information.
However, should Army Activities desire
to withhold non-responsive
information, the following steps shall be
accomplished:
(1) Consult with the requester, and
ask if the requester views the
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information as responsive, and if not,
seek the requester’s concurrence to
delete the non-responsive information
without a FOIA exemption. Reflect this
concurrence in the response letter.
(2) If the responsive record is
unclassified, and the requester does not
agree to deletion of non-responsive
information without a FOIA exemption,
release all non-responsive and
responsive information that is not
exempt. For non-responsive information
that is exempt, notify the requester that
even if the information were determined
responsive, it would likely be exempt
under (state appropriate exemption(s)).
Advise the requester of the right to
request this information under a
separate FOIA request. The separate
request shall be placed in the same
location within the processing queue as
the original request.
(3) If the responsive record is
classified, and the requester does not
agree to deletion of non-responsive
information without a FOIA exemption,
release all unclassified responsive and
non-responsive information that is not
exempt. The classified, non-responsive
information need not be reviewed for
declassification at this point. Advise the
requester that even if the classified
information were determined
responsive, it would likely be exempt
under 5 U.S.C. 552(b)(1), and other
exemptions if appropriate. Advise the
requester of the right to request this
information under a separate FOIA
request. The separate request shall be
placed in the same location within the
processing queue as the original request.
(o) Honoring form or format requests.
Army Activities shall provide the record
in any form or format requested by the
requester if the record is readily
reproducible in that form or format.
Army Activities shall make reasonable
efforts to maintain their records in forms
or formats that are reproducible. In
responding to requests for records,
Army Activities shall make reasonable
efforts to search for records in electronic
form or format, except when such efforts
would significantly interfere with the
operation of the Army Activities’
automated information system. Such
determinations shall be made on a case-
by-case basis.
Subpart B—FOIA Reading Rooms
§ 518.9 Reading room.
(a) Reading room location. The DA
shall provide an appropriate facility or
facilities where the public may inspect
and copy or have copied the records
described in paragraphs (b)(1) through
(4) of this section. In addition to the
records described, DA may elect to
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place other records in their reading
room, and also make them electronically
available to the public. The Army may
share reading room facilities with DoD
Components if the public is not unduly
inconvenienced, and also may establish
decentralized reading rooms. When
appropriate, the cost of copying may be
imposed on the person requesting the
material in accordance with the
provisions of subpart F of this part. The
Army FOIA Public Reading Room is
operated by the DA, FOIA/PA Office.
(b) Record availability. The FOIA
requires that records described in 5
U.S.C. 552(a)(2)(A), (B), (C), and (D)
created on or after November 1, 1996,
shall be made available electronically,
as well as in hard copy in the FOIA
reading room for inspection and
copying, unless such records are
published and copies are offered for
sale. All portions determined to be
exempt in accordance with 5 U.S.C. 552
(reference (a)) shall be deleted from all
5 U.S.C. 552(a)(2) records made
available to the general public. In every
case, justification for the deletion must
be fully explained in writing, and the
extent of such deletion shall be
indicated on the record that is made
publicly available, unless such
indication would harm an interest
protected by an exemption under which
the deletion was made. If technically
feasible, the extent of the deletion in
electronic records or any other form of
record shall be indicated at the place in
the record where the deletion was made.
However, the Army may publish in the
Federal Register a description of the
basis upon which it will delete
identifying details of particular types of
records to avoid clearly unwarranted
invasions of privacy, or competitive
harm to business submitters. In
appropriate cases, the Army may refer to
this description rather than write a
separate justification for each deletion.
5 U.S.C. 552(a)(2)(A), (B), (C), and (D)
records are:
(1) (a)(2)(A) records. Final opinions,
including concurring and dissenting
opinions, and orders made in the
adjudication of cases, as defined in 5
U.S.C. 551, that may be cited, used, or
relied upon as precedents in future
adjudications;
(2) (a)(2)(B) records. Statements of
policy and interpretations that have
been adopted by the agency that are not
published in the Federal Register; and
(3) (a)(2)(C) records. Administrative
hsrobinson on PROD1PC70 with RULES2
staff manuals and instructions, or
portions thereof that establish Army
policy or interpretations of policy that
affect a member of the public. This
provision does not apply to instructions
for employees on tactics and techniques
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to be used in performing their duties, or
to instructions relating only to the
internal management of the Army.
Examples of manuals and instructions
not normally made available are:
(i) Those issued for audit,
investigation, and inspection purposes,
or those that prescribe operational
tactics, standards of performance, or
criteria for defense, prosecution, or
settlement of cases; and
(ii) Operations and maintenance
manuals and technical information
concerning munitions, equipment,
systems, and intelligence activities.
(4) (a)(2)(D) records. Those 5 U.S.C.
552(a)(3) records, which because of the
nature of the subject matter, have
become or are likely to become the
subject of subsequent requests for
substantially the same records. These
records are referred to as FOIA-
processed (a)(2) records.
(i) Army Activities shall decide on a
case by case basis whether records fall
into this category, based on previous
experience of the Army Activity with
similar records; particular
circumstances of the records involved,
including their nature and the type of
information contained in them; or the
identity and number of requesters and
whether there is widespread press,
historic, or commercial interest in the
records.
(ii) This provision is intended for
situations where public access in a
timely manner is important, and it is not
intended to apply where there may be
a limited number of requests over a
short period of time from a few
requesters. Army Activities may remove
the records from this access medium
when the appropriate officials
determine that access is no longer
necessary.
(iii) Should a requester submit a FOIA
request for FOIA-processed (a)(2)
records, and insist that the request be
processed, Army Activities shall process
the FOIA request. However, Army
Activities have no obligation to process
a FOIA request for 5 U.S.C. 552(a)(2)(A),
(B), and (C) records because these
records are required to be made public
and not FOIA-processed under
paragraph (a)(3) of the FOIA.
§ 518.10 ‘‘(a)(2)’’ Materials.
(a) The DA FOIA/PA Office shall
maintain in the facility an index of
materials described in paragraphs (b)(1)
through (4) of § 518.9, that are issued,
adopted, or promulgated after July 4,
1967. No ‘‘(a)(2)’’ materials issued,
promulgated, or adopted after July 4,
1967 that are not indexed and either
made available or published may be
relied upon, used or cited as precedent
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9229
against any individual unless such
individual has actual and timely notice
of the contents of such materials. Such
materials issued, promulgated, or
adopted before July 4, 1967 need not be
indexed, but must be made available
upon request if not exempted under this
part.
(b) The DA FOIA/PA Office shall
promptly publish quarterly or more
frequently, and distribute, by sale or
otherwise, copies of each index of
‘‘(a)(2)’’ materials or supplements
thereto unless it publishes in the
Federal Register an order containing a
determination that publication is
unnecessary and impracticable. A copy
of each index or supplement not
published shall be provided to a
requester at a cost not to exceed the
direct cost of duplication as set forth in
subpart F of this part.
(c) Each index of ‘‘(a)(2)’’ materials or
supplement thereto shall be arranged
topically or by descriptive words rather
than by case name or numbering system
so that members of the public can
readily locate material. Case name and
numbering arrangements, however, may
also be included for Army convenience.
(d) A general index of FOIA-processed
(a)(2) records shall be made available to
the public, both in hard copy and
electronically.
§ 518.11 Other materials.
(a) Any available index of Army
material published in the Federal
Register, such as material required to be
published by section 552(a)(1) of the
FOIA, shall be made available in the
Army FOIA Public Reading Room, and
electronically to the public.
(b) Although not required to be made
available in response to FOIA requests
or made available in FOIA Reading
Rooms, ‘‘(a)(1)’’ materials shall, when
feasible, be made available to the public
in FOIA reading rooms for inspection
and copying, and by electronic means.
Examples of ‘‘(a)(1)’’ materials are
descriptions of an agency’s central and
field organization, and to the extent they
affect the public, rules of procedures,
descriptions of forms available,
instruction as to the scope and contents
of papers, reports, or examinations, and
any amendment, revision, or report of
the aforementioned.
Subpart C—Exemptions
§ 518.12 General.
Records that meet the exemption
criteria of the FOIA may be withheld
from public disclosure and need not be
published in the Federal Register, made
available in a library reading room, or
provided in response to a FOIA request.
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§ 518.13 FOIA exemptions.
The following types of records may be
withheld in whole or in part from
public disclosure under the FOIA,
unless otherwise prescribed by law. A
discretionary release of a record to one
requester shall prevent the withholding
of the same record under a FOIA
exemption if the record is subsequently
requested by someone else. However, a
FOIA exemption may be invoked to
withhold information that is similar or
related to that which has been the
subject of a discretionary release. In
applying exemptions, the identity of the
requester and the purpose for which the
record is sought are irrelevant with the
exception that an exemption may not be
invoked where the particular interest to
be protected is the requester’s interest.
However, if the subject of the record is
the requester for the record and the
record is contained in a PA system of
records, it may only be denied to the
requester if withholding is both
authorized by AR 25–71 and by a FOIA
exemption.
(a) Number 1 (5 U.S.C. 552 (b)(1)).
Those properly and currently classified
in the interest of national defense or
foreign policy, as specifically authorized
under the criteria established by
Executive Order and implemented by
regulations, such as DoD 5200.1–R.
Although material is not classified at the
time of the FOIA request, a
classification review may be undertaken
to determine whether the information
should be classified. The procedures in
DoD 5200.1–R apply. If the information
qualifies as exemption 1 information,
there is no discretion regarding its
release. In addition, this exemption
shall be invoked when the following
situations are apparent:
(1) The fact of the existence or
nonexistence of a record would itself
reveal classified information. In this
situation, Army Activities shall neither
confirm nor deny the existence or
nonexistence of the record being
requested. A ‘‘refusal to confirm or
deny’’ response must be used
consistently, not only when a record
exists, but also when a record does not
exist. Otherwise, the pattern of using a
‘‘no record’’ response when a record
does not exist, and a ‘‘refusal to confirm
or deny’’ when a record does exist will
itself disclose national security
information.
(2) Compilations of items of
information that are individually
hsrobinson on PROD1PC70 with RULES2
unclassified may be classified if the
compiled information reveals additional
association or relationship that meets
the standard for classification under an
existing executive order for
classification and DoD 5200.1–R, and is
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not otherwise revealed in the individual
items of information.
(b) Number 2 (5 U.S.C. 552(b)(2)).
Those related solely to the internal
personnel rules and practices of the DoD
or any of its Components. This
exemption has two profiles, high (b)(2)
and low (b)(2). Activities are encouraged
to consult the DA, FOIA/PA Office, and
the U.S. DoJ ‘‘Freedom of Information
Act Guide & Privacy Act Overview’’ for
a more in depth discussion on the legal
history of the use of the low (b)(2)
exemption. When only a minimal
Government interest would be affected
(administrative burden), Army
Activities shall apply the sound legal
basis standard regarding disclosure of
the information. Army Activities shall
apply the low 2 exemption as
applicable.
(1) Records qualifying under high
(b)(2) are those containing or
constituting statutes, rules, regulations,
orders, manuals, directives,
instructions, security classification
guides, and sensitive but unclassified
information related to America’s
homeland security and critical
infrastructure information the release of
which would allow circumvention of
these records thereby substantially
hindering the effective performance or
present an unwarranted risk of adverse
impact on the ability of other agencies
to protect other important records of a
significant function of the DA. Examples
include:
(i) Those operating rules, guidelines,
and manuals for Army investigators,
inspectors, auditors, or examiners that
must remain privileged in order for the
Army Activity to fulfill a legal
requirement;
(ii) Personnel and other
administrative matters, such as
examination questions and answers
used in training courses or in the
determination of the qualifications of
candidates for employment, entrance on
duty, advancement, or promotion; and
(iii) Computer software, the release of
which would allow circumvention of a
statute, DoD or Army rules, regulations,
orders, manuals, directives, or
instructions. In this situation, the use of
the software must be closely examined
to ensure a circumvention possibility
exists.
(2) Records qualifying under the low
(b)(2) profile are those that are trivial
and housekeeping in nature for which
there is no legitimate public interest or
benefit to be gained by release, and it
would constitute an administrative
burden to process the request in order
to disclose the records. Examples
include rules of personnel’s use of
parking facilities or regulation of lunch
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hours, statements of policy as to sick
leave, and administrative data such as
file numbers, mail routing stamps,
initials, data processing notations, brief
references to previous communications,
and other like administrative markings.
Army Activities shall apply the low 2
exemption as applicable.
(c) Number 3 (5 U.S.C. 552(b)(3)).
Those concerning matters that a statute
specifically exempts from disclosure by
terms that permit no discretion on the
issue, or in accordance with criteria
established by that statute for
withholding or referring to particular
types of matters to be withheld. The DA,
FOIA/PA Office, maintains a list of
(b)(3) statutes used within the DoD, and
provides updated lists of these statutes
to Army Activities on a periodic basis.
A few examples of such statutes are:
(1) Personnel in Overseas, Sensitive,
or Routinely Deployable Units:
nondisclosure of personally identifying
information, 10 U.S.C. 130(b).
Additionally, the names and duty
addresses (postal and/or e-mail) of
Army military and civilian personnel
who are assigned to units that are
sensitive, routinely deployable, or
stationed in foreign territories can
constitute a clearly unwarranted
invasion of personal privacy and may
also be withheld in accordance with
FOIA Exemption 3. Names and duty
addresses (postal and/or e-mail)
published in telephone directories,
organizational charts, rosters and
similar materials for personnel assigned
to units that are sensitive, routinely
deployable, or stationed in foreign
territories are withholdable under this
exemption, in accordance with 10
U.S.C. 130 ‘Personnel in Overseas,
Sensitive, or Routinely Deployable
Units’;
(2) Classification and Declassification
of Restricted Data, 42 U.S.C. 2162;
(3) Disclosure of Classified
Information, 18 U.S.C. 798(a);
(4) Authority to Withhold from Public
Disclosure Certain Technical Data, 10
U.S.C. 130 and DoDD 5230.25;
(5) Confidentiality of Medical Quality
Assurance Records: Qualified Immunity
for Participants, 10 U.S.C. 1102(f);
(6) Physical Protection of Special
Nuclear Material: Limitation on
Dissemination of Unclassified
Information, 10 U.S.C. 128;
(7) Protection of Intelligence Sources
and Methods, 50 U.S.C. 403–3(c)(6);
(8) Prohibition on Release of
Contractor Submitted Proposals, 10
U.S.C. 2305(g);
(9) Restrictions on Disclosing and
Obtaining Contractor Bid or Proposal
Information or Source Selection
Information, 41 U.S.C. 423; and
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(10) Secrecy of Certain Inventions and
Filing Applications in a Foreign
Country, 35 U.S.C. 181–188. Any
records containing information relating
to inventions that are the subject of
patent applications on which Patent
Secrecy Orders have been issued.
(d) Number 4 (5 U.S.C. 552(b)(4)).
Those containing trade secrets or
commercial or financial information
that an Army Activity receives from a
person or organization outside the
Government with the understanding
that the information or record will be
retained on a privileged or confidential
basis in accordance with the customary
handling of such records. Records
within the exemption must contain
trade secrets, or commercial or financial
records, the disclosure of which is likely
to cause substantial harm to the
competitive position of the source
providing the information, impair the
Government’s ability to obtain necessary
information in the future, or impair
some other legitimate Government
interest. Commercial or financial
information submitted on a voluntary
basis, absent any exercised authority
prescribing criteria for submission is
protected without any requirement to
show competitive harm. If the
information qualifies as exemption 4
information, there is no discretion in its
release. Examples include:
(1) Commercial or financial
information received in confidence in
connection with loans, bids, contracts,
or proposals set forth in or incorporated
by reference in a contract entered into
between the Army Activity and the
offeror that submitted the proposal, as
well as other information received in
confidence or privileged, such as trade
secrets, inventions, discoveries, or other
proprietary data. Additionally, when the
provisions of 10 U.S.C. 2305(g) and 41
U.S.C. 423 are met, certain proprietary
and source selection information may be
withheld under exemption 3;
(2) Statistical data and commercial or
financial information concerning
contract performance, income, profits,
losses, and expenditures, if offered and
received in confidence from a contractor
or potential contractor;
(3) Personal statements given in the
course of inspections, investigations, or
audits, when such statements are
received in confidence from the
individual and retained in confidence
because they reveal trade secrets or
commercial or financial information
hsrobinson on PROD1PC70 with RULES2
normally considered confidential or
privileged;
(4) Financial data provided in
confidence by private employers in
connection with locality wage surveys
that are used to fix and adjust pay
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schedules applicable to the prevailing
wage rate of employees within the DA;
(5) Scientific and manufacturing
processes or developments concerning
technical or scientific data or other
information submitted with an
application for a research grant, or with
a report while research is in progress;
(6) Technical or scientific data
developed by a contractor or
subcontractor exclusively at private
expense, and technical or scientific data
developed in part with Federal funds
and in part at private expense, wherein
the contractor or subcontractor has
retained legitimate proprietary interests
in such data in accordance with 10
U.S.C. 2320–2311 and DoD Federal
Acquisition Regulation Supplement
(DFARS), subpart 27.4. Technical data
developed exclusively with Federal
funds may be withheld under
Exemption Number 3 if it meets the
criteria of 10 U.S.C. 130 and DoDD
5230.25;
(7) Computer software, which is
copyrighted in accordance with 17
U.S.C. 106, ‘Exclusive rights in
Copyrighted Works, the disclosure of
which would have an adverse impact on
the potential market value of a
copyrighted work; and
(8) Proprietary information submitted
strictly on a voluntary basis, absent any
exercised authority prescribing criteria
for submission. Examples of exercised
authorities prescribing criteria for
submission are statutes, Executive
Orders, regulations, invitations for bids,
requests for proposals, and contracts.
Submission of information under these
authorities is not voluntary.
(e) Number 5 (5 U.S.C. 552(b)(5)).
Those containing information
considered privileged in litigation,
primarily under the deliberative process
privilege. Except as provided in
paragraphs (e)(1) through (5) of this
section, internal advice,
recommendations, and subjective
evaluations, as contrasted with factual
matters that are reflected in deliberative
records pertaining to the decision-
making process of an agency, whether
within or among agencies (as defined in
5 U.S.C. 552(e)), or within or among
Army Activities. In order to meet the
test of this exemption, the record must
be both deliberative in nature, as well as
part of a decision-making process.
Merely being an internal record is
insufficient basis for withholding under
this exemption. Also potentially
exempted are records pertaining to the
attorney-client privilege and the
attorney work-product privilege.
Discretionary disclosure decisions
should be made only after full and
deliberate consideration of the
PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\22FER2.SGM
9231
institutional, commercial, and personal
privacy interests that could be
implicated by disclosure of the
information.
(1) Examples of the deliberative
process include:
(i) The non-factual portions of staff
papers, to include after-action reports,
lessons learned, and situation reports
containing staff evaluations, advice,
opinions, or suggestions;
(ii) Advice, suggestions, or
evaluations prepared on behalf of the
DA by individual consultants or by
boards, committees, councils, groups,
panels, conferences, commissions, task
forces, or other similar groups that are
formed for the purpose of obtaining
advice and recommendations;
(iii) Those non-factual portions of
evaluations by DoD Component
personnel of contractors and their
products;
(iv) Information of a speculative,
tentative, or evaluative nature or such
matters as proposed plans to procure,
lease or otherwise acquire and dispose
of materials, real estate, facilities or
functions, when such information
would provide undue or unfair
competitive advantage to private
personal interests or would impede
legitimate government functions;
(v) Trade secret or other confidential
research development, or commercial
information owned by the Government,
where premature release is likely to
affect the Government’s negotiating
position or other commercial interest;
(vi) Those portions of official reports
of inspection, reports of the Inspector
Generals, audits, investigations, or
surveys pertaining to safety, security, or
the internal management,
administration, or operation of one or
more Army Activities, when these
records have traditionally been treated
by the courts as privileged against
disclosure in litigation; and
(vii) Planning, programming, and
budgetary information that is involved
in the defense planning and resource
allocation process.
(2) If any such intra- or inter-agency
record or reasonably segregable portion
of such record hypothetically would be
made available routinely through the
discovery process in the course of
litigation with the Army, then it should
not be withheld under the FOIA. If,
however, the information hypothetically
would not be released at all, or would
only be released in a particular case
during civil discovery where a party’s
particularized showing of need might
override a privilege, then the record
may be withheld. Discovery is the
formal process by which litigants obtain
information from each other for use in
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the litigation. Consult with legal counsel
to determine whether exemption 5
material would be routinely made
available through the discovery process.
(3) Intra- or inter-agency memoranda
or letters that are factual, or those
reasonably segregable portions that are
factual, are routinely made available
through discovery, and shall be made
available to a requester, unless the
factual material is otherwise exempt
from release, inextricably intertwined
with the exempt information, so
fragmented as to be uninformative, or so
redundant of information already
available to the requester as to provide
no new substantive information.
(4) A direction or order from a
superior to a subordinate, though
contained in an internal
communication, generally cannot be
withheld from a requester if it
constitutes policy guidance or a
decision, as distinguished from a
discussion of preliminary matters or a
request for information or advice that
would compromise the decision-making
process.
(5) An internal communication
concerning a decision that subsequently
has been made a matter of public record
must be made available to a requester
when the rationale for the decision is
expressly adopted or incorporated by
reference in the record containing the
decision.
(f) Number 6 (5 U.S.C. 552(b)(6)).
Information in personnel and medical
files, as well as similar personal
information in other files, and lists of
personally identifying information of
Army personnel, that, if disclosed to a
requester, other than the person about
whom the information is about, would
result in a clearly unwarranted invasion
of personal privacy. Release of
information about an individual
contained in a Privacy Act System of
Records that would constitute a clearly
unwarranted invasion of privacy is
prohibited, and could subject the
releaser to civil and criminal penalties.
If the information qualifies as
exemption 6 information, there is no
discretion regarding its release.
(1) Examples of other files containing
personal information similar to that
contained in personnel and medical
files include:
(i) Those compiled to evaluate or
adjudicate the suitability of candidates
for civilian employment or membership
in the Armed Forces, and the eligibility
hsrobinson on PROD1PC70 with RULES2
of individuals (civilian, military, or
contractor employees) for security
clearances, or for access to particularly
sensitive classified information; and
(ii) Files containing reports, records,
and other material pertaining to
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personnel matters in which
administrative action, including
disciplinary action, may be taken.
(2) Army components shall ordinarily
withhold lists of names (including
active duty military, civilian employees,
contractors, members of the National
Guard and Reserves, and military
dependents) and other personally
identifying information, including lists
of e-mail addresses of personnel
currently or recently assigned within a
particular component, unit,
organization, or office within the Army.
Home addresses, including private e-
mail addresses, are normally not
releasable without the consent of the
individuals concerned. This includes
lists of home addresses and military
quarters’ addressees without the
occupant’s name.
(i) Privacy Interest. A privacy interest
may exist in personal information even
though the information has been
disclosed at some place and time. If
personal information is not freely
available from sources other than the
Federal Government, a privacy interest
exists in its nondisclosure. The fact that
the Federal Government expended
funds to prepare, index and maintain
records on personal information, and
the fact that a requester invokes FOIA to
obtain these records indicates the
information is not freely available.
(ii) The right to privacy of deceased
persons is not entirely settled, but the
majority rule is that death extinguishes
their privacy rights. However,
particularly sensitive, graphic, personal
details about the circumstances
surrounding an individual’s death may
be withheld when necessary to protect
the privacy interests of surviving family
members. Even information that is not
particularly sensitive in and of itself
may be withheld to protect the privacy
interests of surviving family members if
disclosure would rekindle grief,
anguish, pain, embarrassment, or cause
a disruption of their peace of minds.
Additionally, the deceased’s social
security number should be withheld
since it is used by the next of kin to
receive benefits. Disclosures of the
deceased’s social security number may
be made to the immediate next of kin.
(iii) A clearly unwarranted invasion of
the privacy of third parties identified in
a personnel, medical or similar record
constitutes a basis for deleting those
reasonably segregable portions of that
record. When withholding third party
personal information from the subject of
the record and the record is contained
in a Privacy Act system of records,
consult with legal counsel.
(iv) This exemption also applies when
the fact of the existence or nonexistence
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of a responsive record would itself
reveal personally private information,
and the public interest in disclosure is
not sufficient to outweigh the privacy
interest. In this situation, Army
Activities shall neither confirm nor
deny the existence or nonexistence of
the record being requested. This is a
‘‘Glomar’’ response, and exemption 6
must be cited in the response.
Additionally, in order to ensure
personal privacy is not violated during
referrals, Army Activities shall
coordinate telephonically or in person
with other Army Activities or DoD
Components or Federal Agencies before
referring a record that is exempt under
the ‘‘Glomar’’ concept. See Phillippi v.
CIA, 546 F.2d 1009 (DC Cir. 1976).
(v) A ‘‘refusal to confirm or deny’’
response must be used consistently, not
only when a record exists, but also
when a record does not exist.
Otherwise, the pattern of using a ‘‘no
records’’ response when a record does
not exist and a ‘‘refusal to confirm or
deny’’ when a record does exist will
itself disclose personally private
information. Refusal to confirm or deny
should not be used when:
(A) The person whose personal
privacy is in jeopardy has provided the
requester a waiver of his or her privacy
rights;
(B) The person initiated or directly
participated in an investigation that lead
to the creation of an agency record seeks
access to that record; or
(C) The person whose personal
privacy is in jeopardy is deceased, the
Agency is aware of that fact, and
disclosure would not invade the privacy
of the deceased’s family.
(g) Number 7 (5 U.S.C. 552(b)(7)).
Records or information compiled for
law enforcement purposes, i.e., civil,
criminal, or military, including the
implementation of Executive Orders or
regulations issued pursuant to law. This
exemption may be invoked to prevent
disclosure of documents not originally
created for, but later gathered for law
enforcement purposes. With the
exception of parts (C) and (F), this
exemption is discretionary. If
information qualifies as exemption
(7)(C) or (7)(F) information, there is no
discretion in its release.
(1) This exemption applies, however,
only to the extent that production of
such law enforcement records or
information could result in the
following:
(i) Could reasonably be expected to
interfere with law enforcement
proceedings (5 U.S.C. 552(b)(7)(A));
(ii) Would deprive a person of the
right to a fair trial or to an impartial
adjudication (5 U.S.C. 552(b)(7)(B));
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 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations
(iii) Could reasonably be expected to
constitute an unwarranted invasion of
the personal privacy of a living person,
or to surviving family members of an
individual identified in such a record (5
U.S.C. 552(b)(7)(C));
(iv) This exemption also applies when
the fact of the existence or nonexistence
of a responsive record would itself
reveal personally private information,
and the public interest in disclosure is
not sufficient to outweigh the privacy
interest. In this situation, Activities
shall neither confirm nor deny the
existence or nonexistence of the record
being requested. This is a ‘‘Glomar’’
response, and exemption (7)(C) must be
cited in the response. Additionally, in
order to ensure personal privacy is not
violated during referrals, Army
Activities shall coordinate with other
Army Activities or DoD Components or
Federal Agencies before referring a
record that is exempt under the
‘‘Glomar’’ concept;
(v) A ‘‘refusal to confirm or deny’’
response must be used consistently, not
only when a record exists, but also
when a record does not exist.
Otherwise, the pattern of using a ‘‘no
records’’ response when a record does
not exist and a ‘‘refusal to confirm or
deny’’ when a record does exist will
itself disclose personally private
information;
(vi) Refusal to confirm or deny should
not be used when the person whose
personal privacy is in jeopardy has
provided the requester with a waiver of
his or her privacy rights; or the person
whose personal privacy is in jeopardy is
deceased, and the Agency is aware of
that fact and disclosure would not
invade the privacy of the deceased’s
family;
(vii) Could reasonably be expected to
disclose the identity of a confidential
source, including a source within DoD,
a State, local, or foreign agency or
authority, or any private institution that
furnishes the information on a
confidential basis; and could disclose
information furnished from a
confidential source and obtained by a
criminal law enforcement authority in a
criminal investigation or by an agency
conducting a lawful national security
intelligence investigation (5 U.S.C.
552(b)(7)(D));
(viii) Would disclose techniques and
procedures for law enforcement
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investigations or prosecutions, or would
disclose guidelines for law enforcement
investigations or prosecutions if such
disclosure could reasonably be expected
to risk circumvention of the law (5
U.S.C. 552(b)(7)(E)); or
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(ix) Could reasonably be expected to
endanger the life or physical safety of
any individual (5 U.S.C. 552(b)(7)(F)).
(2) Some examples of exemption 7
are:
(i) Statements of witnesses and other
material developed during the course of
the investigation and all materials
prepared in connection with related
Government litigation or adjudicative
proceedings;
(ii) The identity of firms or
individuals being investigated for
alleged irregularities involving
contracting with the DoD when no
indictment has been obtained or any
civil action filed against them by the
United States; and
(iii) Information obtained in
confidence, expressed or implied, in the
course of a criminal investigation by a
criminal law enforcement agency or
office within an Army Activity or a DoD
Component, or a lawful national
security intelligence investigation
conducted by an authorized agency or
office within an Army Activity or a DoD
Component. National security
intelligence investigations include
background security investigations and
those investigations conducted for the
purpose of obtaining affirmative or
counterintelligence information.
(3) The right of individual litigants to
investigative records currently available
by law (such as, the Jencks Act, 18
U.S.C. 3500), is not diminished.
(4) Excluded from exemption 7 are
two situations applicable to DoD.
(Activities considering invoking an
exclusion based on the following
scenarios should first consult through
legal counsel, to the DoJ, Office of
Information and Privacy (DoJ OIP).
(i) Whenever a request is made that
involves access to records or
information compiled for law
enforcement purposes, and the
investigation or proceeding involves a
possible violation of criminal law where
there is reason to believe that the subject
of the investigation or proceeding is
unaware of its pendency, and the
disclosure of the existence of the
records could reasonably be expected to
interfere with enforcement proceedings,
Activities may, during only such times
as that circumstance continues, treat the
records or information as not subject to
the FOIA. In such a situation, the
response to the requester will state that
no records were found.
(ii) Whenever informant records
maintained by a criminal law
enforcement organization within an
Army Activity or a DoD Component
under the informant’s name or personal
identifier are requested by a third party
using the informant’s name or personal
PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\22FER2.SGM
9233
identifier, the Activity may treat the
records as not subject to the FOIA,
unless the informant’s status as an
informant has been officially confirmed.
If it is determined that the records are
not subject to 5 U.S.C. 552(b)(7), the
response to the requester will state that
no records were found.
(h) Number 8 (5 U.S.C. 552 (b)(8)).
Those contained in or related to
examination, operation or condition
reports prepared by, on behalf of, or for
the use of any agency responsible for the
regulation or supervision of financial
institutions.
(i) Number 9 (5 U.S.C. 552 (b)(9)).
Those containing geological and
geophysical information and data
(including maps) concerning wells.
Subpart D—For Official Use Only
§ 518.14 General.
Information that has not been given a
security classification pursuant to the
criteria of an Executive Order, but
which may be withheld from the public
because disclosure would cause harm to
an interest protected by one or more
FOIA exemptions 2 through 9 (see
Subpart C of this part) shall be
considered as being for official use only
(FOUO). No other material shall be
considered FOUO and FOUO is not
authorized as an additional form of
classification to protect national
security interests. Additional
information on FOUO and other
controlled, unclassified information
may be found in DoD 5200.1-R,
‘‘Information Security Program’’ or by
contacting the DA FOIA/PA Office.
Subpart E—Release and Processing
Procedures
§ 518.15 General provisions.
(a) Since the policy of the DoD is to
make the maximum amount of
information available to the public
consistent with its other
responsibilities, written requests for an
Army record made under the provisions
of 5 U.S.C. 552 (a)(3) of the FOIA may
be denied only when:
(1) The record is subject to one or
more of the exemptions of the FOIA;
(2) The record has not been described
well enough to enable the Army
Activity to locate it with a reasonable
amount of effort by an employee
familiar with the files; or
(3) The requester has failed to comply
with the procedural requirements,
including the written agreement to pay
or payment of any required fee imposed
by the instructions of the Army Activity
concerned. When personally
identifiable information in a record is
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requested by the subject of the record or
his attorney, notarization of the request,
or a statement certifying under the
penalty of perjury that their identity is
true and correct may be required.
Additionally, written consent of the
subject of the record is required for
disclosure from a PA system of records,
to include the subject’s attorney.
(4) Release of information under the
FOIA can have an adverse impact on
OPSEC. The Army implementing
directive for OPSEC is AR 530–1. It
requires that OPSEC points of contact be
named for all HQDA staff agencies and
for all commands down to battalion
level. The FOIA official for the staff
agency or command will use DA Form
4948–R to announce the OPSEC/FOIA
advisor for the command. Persons
named as OPSEC points of contact will
be OPSEC/FOIA advisors. Command
OPSEC/FOIA advisors should
implement the policies and procedures
in AR 530–1, consistent with this part
and with the following considerations:
(i) Documents or parts of documents
properly classified in the interest of
national security must be protected.
Classified documents may be released in
response to a FOIA request only under
AR 380–5, Chapter III. AR 380–5
provides that if parts of a document are
not classified and can be segregated
with reasonable ease, they may be
released, but parts requiring continued
protection must be clearly identified.
(ii) The release of unclassified
documents could violate national
security. When this appears possible,
OPSEC/FOIA advisors should request a
classification evaluation of the
document by its proponent under AR
380–5, paragraphs 2–204, 2–600, 2–800,
and 2–801. In such cases, other FOIA
exemptions may also apply.
(iii) A combination of unclassified
documents, or parts of them, could
combine to supply information that
might violate national security if
released. When this appears possible,
OPSEC/FOIA advisors should consider
classifying the combined information
per AR 380–5, paragraph 2–211.
(iv) A document or information may
not be properly or currently classified
when a FOIA request for it is received.
In this case, the request may not be
denied on the grounds that the
document or information is classified
except in accordance with Executive
Order 12958 as amended, section 1.6(d),
and AR 380–5, paragraph 2–204, and
hsrobinson on PROD1PC70 with RULES2
with approval of the Army OGC.
(5) OPSEC/FOIA advisors will; advise
persons processing FOIA requests on
related OPSEC requirements; help
custodians of requested documents
prepare requests for classification
VerDate Aug<31>2005 14:37 Feb 21, 2006 Jkt 208001
evaluations; and help custodians of
requested documents identify the parts
of documents that must remain
classified under this section and AR
380–5.
(6) OPSEC/FOIA advisors do not, by
their actions, relieve FOIA personnel
and custodians processing FOIA
requests of their responsibility to protect
classified or exempted information.
(b) The provisions of the FOIA are
reserved for persons with private
interests as opposed to U.S. Federal
Agencies seeking official information.
Requests from private persons will be
made in writing, and should clearly
show all other addressees within the
Federal Government to which the
request was also sent. This procedure
will reduce processing time
requirements, and ensure better inter-
and intra-agency coordination.
However, if the requester does not show
all other addressees to which the
request was also sent, Army Activities
shall still process the request. Army
Activities should encourage requesters
to send requests by mail, facsimile, or
by electronic means. Disclosure of
records to individuals under the FOIA
is considered public release of
information, except as provided in this
paragraph. DA officials will release the
following records, upon request, to the
persons specified below, even though
these records are exempt from release to
the general public. The statutory 20
working day limit applies.
(1) Medical records. Commanders or
chiefs of medical treatment facilities
will release information:
(i) On the condition of sick or injured
patients to the patient’s relatives to the
extent permitted by law and regulation.
(ii) That a patient’s condition has
become critical to the nearest known
relative or to the person the patient has
named to be informed in an emergency.
(iii) That a diagnosis of psychosis has
been made to the nearest known relative
or to the person named by the patient.
(iv) On births, deaths, and cases of
communicable diseases to local officials
(if required by local laws).
(v) Copies of records of present or
former soldiers, dependents, civilian
employees, or patients in DA medical
facilities will be released to the patient
or to the patient’s representative on
written request. The attending physician
can withhold records if he or she thinks
that release may injure the patient’s
mental or physical health; in that case,
copies of records will be released to the
patient’s next of kin or legal
representative or to the doctor or dentist
chosen by the patient. If the patient is
adjudged insane, or dies, the copies will
be released, on written request, to the
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patient’s next of kin or legal
representative.
(vi) Copies of records may be given to
a Federal or State hospital or penal
institution if the person concerned is an
inmate or patient there.
(vii) Copies of records or information
from them may be given to authorized
representatives of certain agencies. The
National Academy of Sciences, the
National Research Council, and other
accredited agencies are eligible to
receive such information when they are
engaged in cooperative studies, with the
approval of The Surgeon General of the
Army. However, certain information on
drug and alcohol use cannot be released.
AR 600–85 covers the Army’s substance
abuse program.
(viii) Copies of pertinent parts of a
patient’s records can be furnished to the
staff judge advocate or legal officer of
the command in connection with the
Government’s collection of a claim. If
proper, the legal officer can release this
information to the tortfeasor’s insurer
without the patient’s consent.
Note: Information released to third parties
must be accompanied by a statement of the
conditions of release. The statement will
specify that the information not be disclosed
to other persons except as privileged
communication between doctor and patient.
(2) Military personnel records.
Military personnel records will be
released under these conditions:
(i) DA must provide specific
information about a person’s military
service (statement of military service) in
response to a request by that person or
with that person’s written consent to his
or her legal representative;
(ii) Papers relating to applications for,
designation of beneficiaries under, and
allotments to pay premiums for,
National Service Life Insurance or
Serviceman’s Group Life Insurance will
be released to the applicant or to the
insured. If the insured is adjudged
insane (evidence of an insanity
judgment must be included) or dies, the
records will be released, on request, to
designated beneficiaries or to the next of
kin;
(iii) Copies of DA documents that
record the death of a soldier, a
dependent, or a civilian employee will
be released, on request, to that person’s
next of kin, life insurance carrier, and
legal representative. A person acting on
behalf of someone else concerned with
the death (e.g., the executor of a will)
may also obtain copies by submitting a
written request that includes evidence
of his or her representative capacity.
That representative may give written
consent for release to others; or
(iv) Papers relating to the pay and
allowances or allotments of a present or
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former soldier will be released to the
soldier or his or her authorized
representative. If the soldier is deceased,
these papers will be released to the next
of kin or legal representatives.
(3) Civilian personnel records.
Civilian Personnel Officers (CPO) with
custody of papers relating to the pay
and allowances or allotments of current
or former civilian employees will
release them to the employee or his or
her authorized representative. If the
employee is deceased, these records will
be released to the next of kin or legal
representative. However, a CPO cannot
release statements of witnesses, medical
records, or other reports or documents
pertaining to compensation for injuries
or death of a DA civilian employee.
(4) Accused persons. Release of
information to the public concerning
accused persons before determination of
the case. Such release may prejudice the
accused’s opportunity for a fair and
impartial determination of the case. The
following procedures apply:
(i) The following information
concerning persons accused of an
offense may be released by the
convening authority to public news
agencies or media. The accused’s name,
grade or rank, unit, regular assigned
duties, and other information as allowed
by AR 25–71, paragraph 3–3a. The
substance or text of the offense of which
the person is accused. The identity of
the apprehending or investigating
agency and the length or scope of the
investigation before apprehension. The
factual circumstances immediately
surrounding the apprehension,
including the time and place of
apprehension, resistance, or pursuit.
The type and place of custody, if any;
(ii) Information that will not be
released. Before evidence has been
presented in open court, subjective
observations or any information not
incontrovertibly factual will not be
released. Background information or
information relating to the
circumstances of an apprehension may
be prejudicial to the best interests of the
accused, and will not be released unless
it serves a law enforcement function.
The following kinds of information will
not be released: Observations or
comments on an accused’s character
and demeanor, including those at the
time of apprehension and arrest or
during pretrial custody. Statements,
admissions, confessions, or alibis
attributable to an accused, or the fact of
hsrobinson on PROD1PC70 with RULES2
refusal or failure of the accused to make
a statement. Reference to confidential
sources, investigative techniques and
procedures, investigator notes, and
activity files. This includes reference to
fingerprint tests, polygraph
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examinations, blood tests, firearms
identification tests, or similar laboratory
tests or examinations. Statements as to
the identity, credibility, or testimony of
prospective witnesses. Statements
concerning evidence or argument in the
case, whether or not that evidence or
argument may be used at the trial. Any
opinion on the accused’s guilt. Any
opinion on the possibility of a plea of
guilty to the offense charged, or of a plea
to a lesser offense;
(iii) Other considerations.
Photographing or televising the accused.
DA personnel should not encourage or
volunteer assistance to news media in
photographing or televising an accused
or suspected person being held or
transported in military custody. DA
representatives should not make
photographs of an accused or suspect
available unless a law enforcement
function is served. Requests from news
media to take photographs during
courts-martial are governed by AR 360–
1;
(iv) Fugitives from justice. This
section does not restrict the release of
information to enlist public aid in
apprehending a fugitive from justice; or
(v) Exceptional cases. Permission to
release information from military
personnel records to public news
agencies or media may be requested
from The Judge Advocate General
(TJAG). Requests for information from
military personnel records will be
processed according to this part.
(5) Litigation, tort claims, and
contract disputes. Release of
information or records under this
section are subject to the time
limitations prescribed by the FOIA. The
requester must be advised of the reasons
for nonrelease or referral.
(i) Litigation. Each request for a record
related to pending litigation involving
the United States will be referred to the
staff judge advocate or legal officer of
the command. He or she will promptly
inform the Litigation Division, U.S.
Army Legal Services Agency (USALSA),
of the substance of the request and the
content of the record requested.
(Mailing address: U.S. Army Litigation
Center, 901 N. Stuart Street, Arlington,
VA 22203–1837. If information is
released for use in litigation involving
the United States, the Chief, Army
Litigation Division (AR 27–40, para 1–
4d) must be advised of the release. He
or she will note the release in such
investigative reports. Information or
records normally exempted from release
(i.e., personnel and medical records)
may be releasable to the judge or court
concerned, for use in litigation to which
the United States is not a party. Refer
such requests to the local staff judge
PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\22FER2.SGM
9235
advocate or legal officer, who will
coordinate it with the Litigation Center,
USALSA.
(ii) Tort claims. A claimant or a
claimant’s attorney may request a record
that relates to a pending administrative
tort claim filed against the DA. Refer
such requests promptly to the claims
approving or settlement authority that
has monetary jurisdiction over the
pending claim. These authorities will
follow AR 27–20. The request may
concern an incident in which the
pending claim is not as large as a
potential claim; in such a case, refer the
request to the authority that has
monetary jurisdiction over the potential
claim. A potential claimant or his or her
attorney may request information under
circumstances clearly indicating that it
will be used to file a tort claim, though
none has yet been filed. Refer such
requests to the staff judge advocate or
legal officer of the command. That
authority, when subordinate, will
promptly inform the Chief, U.S. Army
Claims Service (USACS), of the
substance of the request and the content
of the record. (Mailing address: U.S.
Army Claims Service, ATTN: JACS–
TCC, Fort George G. Meade, MD 20755–
5360. IDA officials who receive requests
will refer them directly to the Chief,
USACS. They will also advise the
requesters of the referral and the basis
for it. The Chief, USACS, will process
requests according to this part and AR
27–20, paragraph 1–10.
(iii) Contract disputes. Each request
for a record that relates to a potential
contract dispute or a dispute that has
not reached final decision by the
contracting officer will be treated as a
request for procurement records and not
as litigation. However, the officials will
consider the effect of release on the
potential dispute. Those officials may
consult with the USALSA, Contract
Appeals Division. (Mailing address: U.S.
Army Legal Services Agency, ATTN:
JALS–CA, 901 North Stuart Street,
Arlington, VA 22203. If the request is
for a record that relates to a pending
contract appeal to the Armed Services
Board of Contract Appeals, or to a final
decision that is still subject to appeal
(i.e., 90 days have not lapsed after
receipt of the final decision by the
contractor) then the request will be:
Treated as involving a contract dispute;
and referred to the USALSA, Contract
Appeals Division.
(6) Special nuclear material.
Dissemination of unclassified
information concerning physical
protection of special nuclear material.
(i) Unauthorized dissemination of
unclassified information pertaining to
security measures, including security
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plans, procedures, and equipment for
the physical protection of special
nuclear material, is prohibited under 10
U.S.C. 128.
(ii) This prohibition shall be applied
by the Deputy Chief of Staff, G–3 as the
IDA, to prohibit the dissemination of
any such information only if and to the
extent that it is determined that the
unauthorized dissemination of such
information could reasonably be
expected to have a significant adverse
effect on the health and safety of the
public or the common defense and
security by significantly increasing the
likelihood of illegal production of
nuclear weapons, theft, diversion, or
sabotage of special nuclear materials,
equipment, or facilities.
(iii) In making such a determination,
Army personnel may consider what the
likelihood of an illegal production,
theft, diversion, or sabotage would be if
the information proposed to be
prohibited from dissemination were at
no time available for dissemination.
(iv) Army personnel shall exercise the
foregoing authority to prohibit the
dissemination of any information
described so as to apply the minimum
restrictions needed to protect the health
and safety of the public or the common
defense and security, and upon a
determination that the unauthorized
dissemination of such information
could reasonably be expected to result
in a significant adverse effect on the
health and safety of the public or the
common defense and security by
significantly increasing the likelihood of
illegal production of nuclear weapons,
theft, diversion, or sabotage of special
nuclear materials, equipment, or
facilities.
(v) Army employees shall not use this
authority to withhold information from
the appropriate committees of Congress.
(7) Names and duty addresses. Lists
of names, including telephone
directories, organizational charts, and/or
staff directories published by
installations or activities, and other
personally identifying information will
ordinarily be withheld when requested
under the FOIA. This does not preclude
a discretionary release of names and
duty information of personnel who, by
the nature of their position and duties,
frequently interact with the public, such
as general officers, public affairs
officers, and other personnel designated
as official command spokespersons. The
IDA for telephone directories is
hsrobinson on PROD1PC70 with RULES2
delegated to the DA, FOIA/PA Office.
Public Affairs Offices may, after careful
analysis, release information
determined to have legitimate news
value, such as notices of personnel
reassignments to new units or
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installations within the continental
United States, results of selection/
promotion boards, school graduations/
completions, and awards and similar
personal achievements. They may
release the names and duty addresses of
key officials, if such release is
determined to be in the interests of
advancing official community relation’s
functions.
(c) Requests from government
officials. Requests from officials of State
or local Governments for Army Activity
records shall be considered the same as
any other requester. Requests from
members of Congress not seeking
records on behalf of a Congressional
Committee, Subcommittee, either House
sitting as a whole, or made on behalf of
their constituents shall be considered
the same as any other requester.
Requests from officials of foreign
governments shall be considered the
same as any other requester; however,
Army Intelligence elements are
statutorily prohibited from releasing
records responsive to requests made by
any foreign government or a
representative of a foreign government.
Requests from officials of foreign
governments that do not invoke the
FOIA shall be referred to appropriate
foreign disclosure channels and the
requester so notified.
(d) Privileged release outside of the
FOIA to U.S. government officials.
Records exempt from release to the
public under the FOIA may be disclosed
in accordance with Army regulations to
agencies of the Federal Government,
whether legislative, executive, or
administrative, as follows:
(1) In response to a request of a
Committee or Subcommittee of
Congress, or to either House sitting as a
whole in accordance with DoDD 5400.4.
The Army implementing directive is AR
1–20. Commanders or chiefs will notify
the Chief of Legislative Liaison of all
releases of information to members of
Congress or staffs of congressional
committees. Organizations that in the
normal course of business are required
to provide information to Congress may
be excepted. Handle requests by
members of Congress (or staffs of
congressional committees) for
inspection of copies of official records
as follows:
(i) National security classified
records, follow AR 380–5;
(ii) Civilian personnel records,
members of Congressional Committees,
Subcommittees, or Joint Committees
may examine official personnel folders
to the extent that the subject matter falls
within their established jurisdictions, as
permitted by 5 CFR 297.401(i);
PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\22FER2.SGM
(iii) Information related to
disciplinary action. This paragraph
refers to records of trial by courts-
martial; nonjudicial punishment of
military personnel under the Uniform
Code of Military Justice, Article 15;
nonpunitive measures such as
administrative reprimands and
admonitions; suspensions of civilian
employees; and similar documents. If
DA has specific instructions on the
request, the following will apply.
Subordinate commanders will not
release any information without
securing the consent of the proper
installation commander. The
installation commander may release the
information unless the request is for a
classified or ‘‘FOUO’’ document. In that
case the commander will refer the
request promptly to the Chief of
Legislative Liaison for action, including
the recommendations of the
transmitting agency and copies of the
requested records with the referral.
(iv) Military personnel records. Only
HQDA can release information from
these records. Custodians will refer all
requests from Congress directly and
promptly to the Chief of Legislative
Liaison, HQDA, Washington DC 20310–
1600.
(v) Criminal investigation records.
Only the Commanding General, U.S.
Army Criminal Investigation Command
(USACIDC), can release any USACIDC-
originated criminal investigation file.
For further information, see AR 195–2.
(vi) Other exempt records.
Commanders or chiefs will refer
requests for all other categories of
exempt information directly to the Chief
of Legislative Liaison. They will include
a copy of the material requested and, as
appropriate, recommendations
concerning release or denial.
(vii) All other records. The
commander or chief with custody of the
records will furnish all other
information promptly; to other Federal
Agencies, both executive and
administrative, as determined by the
head of an Army Activity or designee;
or in response to an order of a Federal
court, Army Activities shall release
information along with a description of
the restrictions on its release to the
public;
(viii) Disciplinary actions and
criminal investigations. Requests for
access to, or information from, the
records of disciplinary actions or
criminal investigations will be honored
if proper credentials are presented.
Representatives of the Office of
Personnel Management may be given
information from personnel files of
employees actually employed at
organizations or activities. Each such
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request will be considered on its merits.
The information released will be the
minimum required in connection with
the investigation being conducted.
(ix) Other types of requests. All other
official requests received by DA
elements from agencies of the executive
branch (including other military
departments) will be honored, if there
are no compelling reasons to the
contrary. If there are reasons to
withhold the records, the requests will
be submitted for determination of the
propriety of release to the appropriate
addresses shown in Appendix B of this
part.
(2) Army Activities shall inform
officials receiving records under the
provisions of this section that those
records are exempt from public release
under the FOIA. Army Activities also
shall advise officials of any special
handling instructions. Classified
information is subject to the provisions
of DoD 5200.1–R, and information
contained in Privacy Act systems of
records is subject to DoD 5400.11–R.
(e) Consultation with affected DoD
component. (1) When an Army Activity
receives a FOIA request for a record in
which an affected Army or DoD
organization (including a Combatant
Command) has a clear and substantial
interest in the subject matter,
consultation with that affected Army or
DoD organization is required. As an
example, where an Army Activity
receives a request for records related to
DoD operations in a foreign country, the
cognizant Combatant Command for the
area involved in the request shall be
consulted before a release is made.
Consultations may be telephonic,
electronic, or in hard copy.
(2) The affected Activity shall review
the circumstances of the request for
host-nation relations, and provide,
where appropriate, FOIA processing
assistance to the responding DoD
Component regarding release of
information. Responding Army
Activities shall provide copies of
responsive records to the affected DoD
Component when requested. The
affected DoD Component shall receive a
courtesy copy of all releases in such
circumstances.
(3) Nothing in § 518.19 shall impede
the processing of the FOIA request
initially received by an Army Activity.
§ 518.16 Initial determinations.
(a) Initial denial authority. The DA
hsrobinson on PROD1PC70 with RULES2
officials are designated as the Army’s
only IDAs. Only an IDA, his or her
delegate, or the Secretary of the Army
can deny FOIA requests for DA records.
Each IDA will act on direct and referred
requests for records within his or her
VerDate Aug<31>2005 14:37 Feb 21, 2006 Jkt 208001
area of functional responsibility. (See
the proper AR in the 10 series for full
discussions of these areas. Included are
records created or kept within the IDA’s
area of responsibility; records retired by,
or referred to, the IDA’s headquarters or
office; and records of predecessor
organizations. If a request involves the
areas of more than one IDA, the IDA to
whom the request was originally
addressed will normally respond to it;
however, the affected IDAs may consult
on such requests and agree on
responsibility for them. IDAs will
complete all required coordination at
initial denial level. This includes
classified records retired to the NARA
when a mandatory declassification
review is necessary. Requests and/or
responsive documents should not be
sent to the DA FOIA/PA Office for
initial denial authority or to forward to
other offices within the DA.
(b) FOIA requesters may ultimately
appeal if they are dissatisfied with
adverse determinations. It is crucial to
forward complete packets to the IDAs.
Ensure cover letters list all attachments
and describe from where the records
were obtained, i.e., a PA system of
records (including the applicable
systems notice), or other. If a FOIA
action is complicated, include a
chronology of events to assist the IDA in
understanding what happened in the
course of processing the FOIA request.
If a file does not include documentation
described below, include the tab, and
insert a page marked ‘‘not applicable’’ or
‘‘not used.’’ The order and contents of
FOIA file attachments follow: (Tab A or
1) The original FOIA request and
envelope (if applicable); (Tab B or 2)
The response letter; (Tab C or 3) Copies
of all records entirely released, single-
sided; (Tab D or 4) Copies of
administrative processing documents,
including extension letters and ‘‘no
records’’ certificates, in chronological
order; (Tab E or 5) Copies of all records
partially released or entirely denied,
single-sided. For partially released
records, mark in yellow highlighter (or
other readable highlighter) those
portions withheld; and (Tab F or 6)
Legal opinions(s).
(c) The initial determination of
whether to make a record available or
grant a fee waiver upon request may be
made by any suitable official designated
by the Army Activity in published
regulations. The presence of the
marking ‘‘FOUO’’ does not relieve the
designated official of the responsibility
to review the requested record for the
purpose of determining whether an
exemption under this part is applicable
and should be invoked. IDAs may
delegate all or part of their authority to
PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\22FER2.SGM
9237
a division chief under its supervision
within the Agency in the grade of 05/
civilian equivalent. Requests for
delegation authority below this level
must be submitted, after coordination,
to the DA FOIA/PA Office, with detailed
justification, for approval. Such
delegations must not slow FOIA actions.
If an IDA’s delegate denies a FOIA or fee
waiver request, the delegate must
clearly state that he or she is acting for
the IDA and identify the IDA by name
and position in the written response to
the requester. IDAs will send only the
names, offices, and telephone numbers
of their delegates to the DA, FOIA/PA
Office. IDAs will keep this information
current.
(d) The officials designated by Army
Activities to make initial determinations
should consult with public affairs
officers (PAOs) to become familiar with
subject matters that are considered to be
newsworthy, and advise PAOs of all
requests from news media
representatives. In addition, the officials
should inform PAOs in advance when
they intend to withhold or partially
withhold a record, if it appears that the
withholding action may be challenged
in the media. A FOIA release or denial
action, appeal, or court review may
generate public or press interest. In such
case, the IDA (or delegate) should
consult the Chief of Public Affairs or the
command or organization PAO. The IDA
should inform the PAO contacted of the
issue and obtain advice and
recommendations on handling its public
affairs aspect. Any advice or
recommendations requested or obtained
should be limited to this aspect.
Coordination must be completed within
the statutory 20 working day FOIA
response limit. (The point of contact for
the Army Chief of Public Affairs is
HQDA (SAPA–OSR), Washington DC
20310–1500). If the request involves
actual or potential litigation against the
United States, release must be
coordinated with The Judge Advocate
General (TJAG).
(e) The following officials are
designated IDAs for the areas of
responsibility outlined below:
(1) The Administrative Assistant to
the Secretary of the Army is authorized
to act for the Secretary of the Army on
requests for all records maintained by
the Office of the Secretary of the Army
and its serviced activities as well as
requests requiring the personal attention
of the Secretary of the Army. This also
includes civilian Equal Employment
Opportunity (EEO) actions. (See DCS,
G–1 for military Equal Opportunity (EO)
actions). The Administrative Assistant
to the Secretary of the Army has
delegated its authority to the Chief
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Attorney and Legal Services Directorate,
U.S. Army Resources & Programs
Agency. (See DCS, G–1 for military
Equal Opportunity (EO) actions).
(2) The Assistant Secretary of the
Army (Financial Management and
Comptroller) is authorized to act on
requests for finance and accounting
records. Requests for CONUS finance
and accounting records should be
referred to the Defense Finance and
Accounting Service (DFAS). The Chief
Attorney and Legal Services Directorate,
acts on requests for non-finance and
accounting records of the Assistant
Secretary of the Army (Financial
Management and Comptroller).
(3) The Assistant Secretary of the
Army (Acquisition, Logistics, &
Technology) is authorized to act on
requests for procurement records other
than those under the purview of the
Chief of Engineers and the Commander,
U.S. Army Materiel Command. The
Chief Attorney and Legal Services
Directorate, acts on requests for non-
procurement records of the Assistant
Secretary of the Army (Acquisition,
Logistics and Technology).
(4) The Deputy Assistant Secretary of
the Army (Civilian Personnel Policy)/
Director of Civilian Personnel, Office of
the Assistant Secretary of the Army
(Manpower and Reserve Affairs) is
authorized to act on requests for civilian
personnel records, personnel
administration and other civilian
personnel matters, except for EEO
(civilian) matters which will be acted on
by the Administrative Assistant to the
Secretary of the Army. The Deputy
Assistant Secretary of the Army
(Civilian Personnel Policy)/Director of
Civilian Personnel has delegated this
authority to the Chief, Policy and
Program Development Division.
(5) The Chief Information Officer, G–
6 is authorized to act on requests for
records pertaining to Army Information
Technology, command, control
communications and computer systems
and the Information Resources
Management Program (automation,
telecommunications, visual information,
records management, publications and
printing).
(6) The Inspector General is
authorized to act on requests for all
Inspector General Records.
(7) The Auditor General is authorized
to act on requests for records relating to
audits done by the U.S. Army Audit
Agency under AR 10–2. This includes
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requests for related records developed
by the Audit Agency.
(8) The Director of the Army Staff is
authorized to act on requests for all
records of the Chief of Staff and its Field
Operating Agencies. The Director of the
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Army Staff has delegated its authority to
the Chief Attorney and Legal Services
Directorate, U.S. Army Resources &
Programs Agency. The Chief Attorney
and Legal Services Director, U.S. Army
Resources & Programs Agency acts on
requests for records of the Chief of Staff
and its Field Operating Agencies. (See
TJAG for the (GOMO) actions).
(9) The Deputy Chief of Staff, G–3 is
authorized to act on requests for records
relating to International Affairs policy,
planning, integration and assessments,
strategy formulation, force development,
individual and unit training policy,
strategic and tactical command and
control systems, nuclear and chemical
matters, use of DA forces.
(10) The Deputy Chief of Staff, G–8 is
authorized to act on requests for records
relating to programming, material
integration and externally directed
reviews.
(11) The Office of the Deputy Chief of
Staff, G–1 is authorized to act on the
following records: Personnel board
actions, Equal Opportunity (military)
and sexual harassment, health
promotions, physical fitness and well
being, command and leadership policy
records, HIV and suicide policy,
substance abuse programs except for
individual treatment records which are
the responsibility of the Surgeon
General, retiree benefits, services, and
programs, (excluded are individual
personnel records of retired military
personnel, which are the responsibility
of the U.S. Army Human Resources
Command–St. Louis (AHRC–STL), DA
dealings with Veterans Affairs, U.S.
Soldier’s and Airmen’s Home, retention,
promotion, and separation; recruiting
and MOS policy issues, personnel travel
and transportation entitlements,
military strength and statistics, The
Army Librarian, demographics, and
Manprint.
(12) The Deputy Chief of Staff, G–4 is
authorized to act on requests for records
relating to DA logistical requirements
and determinations, policy concerning
materiel maintenance and use,
equipment standards, and logistical
readiness.
(13) The Chief of Engineers is
authorized to act on requests for records
involving civil works, military
construction, engineer procurement,
and ecology; and the records of the U.S.
Army Engineer divisions, districts,
laboratories, and field operating
agencies.
(14) The Surgeon General,
Commander, U.S. Army Medical
Command, is authorized to act on
requests for medical research and
development records, and the medical
records of active duty military
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personnel, dependents, and persons
given physical examination or treatment
at DA medical facilities, to include
alcohol and drug treatment/test records.
(15) The Chief of Chaplains is
authorized to act on requests for records
involving ecclesiastical relationships,
rites performed by DA chaplains, and
nonprivileged communications relating
to clergy and active duty chaplains’
military personnel files.
(16) The Judge Advocate General is
authorized to act on requests for records
relating to claims, courts-martial, legal
services, administrative investigations,
and similar legal records. TJAG is also
authorized to act on requests for the
GOMO actions and records described
elsewhere in this regulation, especially
if those records relate to litigation in
which the United States has an interest.
In addition, TJAG is authorized to act on
requests for records that are not within
the functional areas of responsibility of
any other IDA, including, but not
limited to requests for records for
Commands, and activities.
(17) The Chief, National Guard
Bureau, is authorized to act on requests
for all personnel and medical records of
retired, separated, discharged, deceased,
and active Army National Guard
military personnel, including technician
personnel, unless such records clearly
fall within another IDA’s responsibility.
This authority includes, but is not
limited to, National Guard organization
and training files; plans, operations, and
readiness files, policy files, historical
files, files relating to National Guard
military support, drug interdiction, and
civil disturbances; construction, civil
works, and ecology records dealing with
armories, facilities within the States,
ranges, etc. Equal Opportunity
investigative records; aviation program
records and financial records dealing
with personnel, operation and
maintenance, and equipment budgets.
(18) The Chief of Army Reserve is
authorized to act on requests for all
personnel and medical records of
retired, separated, discharged, deceased,
and reserve component military
personnel, and all U.S. Army Reserve
(USAR) records, unless such records
clearly fall within another IDA’s
responsibility. Records under the
responsibility of the Chief of Army
Reserve include records relating to
USAR plans, policies, and operations;
changes in the organizational status of
USAR units; mobilization and
demobilization policies, active duty
tours, and the Individual Mobilization
Augmentation program.
(19) The Commander, United States
Army Materiel Command (AMC) is
authorized to act on requests for the
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records of AMC headquarters and to
subordinate commands, units, and
activities that relate to procurement,
logistics, research and development,
and supply and maintenance
operations.
(20) The Provost Marshal General
(PMG) is authorized to act on all
requests for provost marshal activities
and law enforcement functions for the
army, all matters relating to police
intelligence, physical security, criminal
investigations, corrections and
internment (to include confinement and
correctional programs for U.S. prisoners,
criminal investigations, provost marshal
activities, and military police support.
The PMG is responsible for the Office of
Security, Force Protection, and Law
Enforcement Division and is the
functional proponent for AR 190-series
(Military Police) and 195-series
(Criminal Investigation), AR 630–10
Absent Without Leave, Desertion, and
Administration of Personnel Involved in
Civilian Court Proceedings, and AR
633–30, Military Sentences to
Confinement.
(21) The Commander, U.S. Army
Criminal Investigation Command
(USACIDC), is authorized to act on
requests for criminal investigative
records of USACIDC headquarters, its
subordinate activities, and military
police reports. This includes criminal
investigation records, investigation-in-
progress records, and all military police
records and reports.
(22) The Commander, United States
Army Human Resources Command
(USAHRC), is authorized to act on
requests for military personnel files
relating to active duty (other than those
of reserve and retired personnel)
military personnel matters, personnel
locator, physical disability
determinations, and other military
personnel administration records;
records relating to military casualty and
memorialization activities; heraldic
activities, voting, records relating to
identification cards, naturalization and
citizenship, commercial solicitation,
Military Postal Service Agency and
Army postal and unofficial mail service.
(23) The Commander, USARC-StL has
been delegated authority to act on behalf
of the USAHRC for requests concerning
all personnel and medical records of
retired, separated, discharged, deceased,
and reserve component military
personnel, unless such records clearly
fall within another IDA’s authority. The
hsrobinson on PROD1PC70 with RULES2
authority does not include records
relating to USAR plans, policies, and
operations; changes in the
organizational status of USAR units,
mobilization and demobilization
policies; active duty tours, and the
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individual mobilization augmentation
program.
(24) The Assistant Chief of Staff for
Installation Management (ACSIM) is
authorized to act on requests for records
relating to planning, programming,
execution and operation of Army
installations. This includes base
realignment and closure activities,
environmental activities other than
litigation, facilities and housing
activities, and installation management
support activities.
(25) The Commander, United States
Army Intelligence and Security
Command, is authorized to act on
requests for intelligence and security
records, foreign scientific and
technological records, intelligence
training, intelligence threat assessments,
and foreign liaison information.
(26) The Commander, U.S. Army
Safety Center, is authorized to act on
requests for Army safety records.
(27) The Commander, United States
Army Test and Evaluation Command
(ATEC), is authorized to act on requests
for the records of ATEC headquarters,
its subordinate commands, units, and
activities that relate to test and
evaluation operations.
(28) The General Counsel, Army and
Air Force Exchange Service (AAFES), is
authorized to act on requests for AAFES
records, under AR 60–20/AFR 147–14.
(29) Special IDA authority for time-
event related records may be designated
on a case-by-case basis. These will be
published in the Federal Register. You
may contact the DA, FOIA/PA Office to
obtain current information on special
delegations.
(f) Reasons for Not Releasing a
Record. The following are reasons for
not complying with a request for a
record under 5 U.S.C. 552(a)(3).
(1) No Records. A reasonable search of
files failed to identify responsive
records. The records custodian will
prepare a detailed no records certificate.
This certificate must include, at a
minimum, what areas or offices were
searched and how the search was
conducted (manually, by computer,
etc.). The certificate will be signed by
the records custodian and will include
his or her grade and title. The original
certificate will be forwarded to the IDA.
Preprinted ‘‘check-the-block’’ or ‘‘fill-in-
the-blank’’ no records certificates are
not authorized.
(2) Referrals. The request is
transferred to another Army Activity or
DoD Component, or to another Federal
Agency.
(3) Request Withdrawn. The request is
withdrawn by the requester.
(4) Fee-Related Reason. The requester
is unwilling to pay fees associated with
PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\22FER2.SGM
9239
a request; the requester is past due in
the payment of fees from a previous
FOIA request; or the requester disagrees
with the fee estimate.
(5) Records not Reasonably Described.
A record has not been described with
sufficient particularity to enable the
Army or DoD Component to locate it by
conducting a reasonable search.
(6) Not a Proper FOIA Request for
Some Other Reason. The requester has
failed unreasonably to comply with
procedural requirements, other than fee-
related, imposed by this part or Army
Activity supplementing regulations.
(7) Not an Agency Record. The
information requested is not a record
within the meaning of the FOIA and this
part.
(8) Duplicate Request. The request is
a duplicate request (e.g., a requester asks
for the same information more than
once). This includes identical requests
received via different means (e.g.,
electronic mail, facsimile, mail, and
courier) at the same or different times.
(9) Other (Specify). Any other reason
a requester does not comply with
published rules other than those
outlined in paragraphs (f)(1) through (8)
of this section.
(10) Partial or Total Denial. The
record is denied in whole or in part in
accordance with procedures set forth in
the FOIA.
(g) Denial tests. To deny a requested
record that is in the possession and
control of an Army Activity, it must be
determined that the record is exempt
under one or more of the exemptions of
the FOIA. An outline of the FOIA’s
exemptions is contained in subpart C of
this part.
(h) Reasonably segregable portions.
Although portions of some records may
be denied, the remaining reasonably
segregable portions must be released to
the requester when it reasonably can be
assumed that a skillful and
knowledgeable person could not
reconstruct the excised information.
Unless indicating the extent of the
deletion would harm an interest
protected by an exemption, the amount
of deleted information shall be
indicated on the released portion of
paper records by use of brackets or
darkened areas indicating removal of
information. In no case shall the deleted
areas be left ‘‘white’’ without the use of
brackets to show the bounds of deleted
information. In the case of electronic
deletion, or deletion in audiovisual or
microfiche records, if technically
feasible, the amount of redacted
information shall be indicated at the
place in the record such deletion was
made, unless including the indication
would harm an interest protected by the
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exemption under which the deletion is
made. This may be done by use of
brackets, shaded areas, or some other
identifiable technique that will clearly
show the limits of the deleted
information. When a record is denied in
whole, the response advising the
requester of that determination will
specifically state that it is not reasonable
to segregate portions of the record for
release.
(i) Response to requester. Whenever
possible, initial determinations to
release or deny a record normally shall
be made and the decision reported to
the requester within 20 working days
after receipt of a proper request by the
official designated to respond. When an
Army Activity has a significant number
of pending requests which prevent a
response determination within the 20
working day period, the requester shall
be so notified in an interim response,
and advised whether their request
qualifies for the fast track or slow track
within the Army Activity’s multitrack
processing system. Requesters who do
not meet the criteria for fast track
processing shall be given the
opportunity to limit the scope of their
request in order to qualify for fast track
processing.
(1) When a decision is made to release
a record, a copy should be made
available promptly to the requester once
he has complied with preliminary
procedural requirements.
(2) When a request for a record is
denied in whole or in part, the official
designated to respond shall inform the
requester in writing of the name and
title or position of the official who made
the determination, and shall explain to
the requester the basis for the
determination in sufficient detail to
permit the requester to make a decision
concerning appeal. The requester
specifically shall be informed of the
exemptions on which the denial is
based, inclusive of a brief statement
describing what the exemption(s) cover.
When the initial denial is based in
whole or in part on a security
classification, the explanation should
include a summary of the applicable
Executive Order criteria for
classification, as well as an explanation,
to the extent reasonably feasible, of how
those criteria apply to the particular
record in question. The requester shall
also be advised of the opportunity and
procedures for appealing an unfavorable
hsrobinson on PROD1PC70 with RULES2
determination to a higher final authority
within the Army Activity. The IDA will
inform the requester of his or her right
to appeal, in whole or part, the denial
of the FOIA or fee waiver request and
that the appeal must be sent through the
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IDA to the Secretary of the Army
(ATTN: OGC).
(3) The final response to the requester
should contain information concerning
the fee status of the request, consistent
with the provisions of subpart F, of this
part. When a requester is assessed fees
for processing a request, the requester’s
fee category shall be specified in the
response letter. Activities also shall
provide the requester with a complete
cost breakdown (e.g., 115 pages of office
reproduction at $0.15 per page; 5
minutes of computer search time at
$43.50 per minute, 3 hours of
professional level search at $44 per
hour, etc.) in the response letter.
(4) The explanation of the substantive
basis for a denial shall include specific
citation of the statutory exemption
applied under provisions of this part;
e.g., 5 U.S.C. 552 (b)(1). Merely referring
to a classification; to a ‘‘FOUO’’ marking
on the requested record; or to this part
or an Army Activity’s regulation does
not constitute a proper citation or
explanation of the basis for invoking an
exemption.
(5) When the time for response
becomes an issue, the official
responsible for replying shall
acknowledge to the requester the date of
the receipt of the request.
(6) When denying a request for
records, in whole or in part, an Army
Activity shall make a reasonable effort
to estimate the volume of the records
denied and provide this estimate to the
requester, unless providing such an
estimate would harm an interest
protected by an exemption of the FOIA.
This estimate should be in number of
pages or in some other reasonable form
of estimation, unless the volume is
otherwise indicated through deletions
on records disclosed in part.
(7) When denying a request for
records in accordance with a statute
qualifying as a FOIA exemption 3
statute, Army Activities shall, in
addition to stating the particular statute
relied upon to deny the information,
also state whether a court has upheld
the decision to withhold the
information under the particular statute,
and a concise description of the scope
of the information being withheld.
(j) Extension of time. In unusual
circumstances, when additional time is
needed to respond to the initial request,
the Army Activity shall acknowledge
the request in writing within 20 working
days, describe the circumstances
requiring the delay, and indicate the
anticipated date for a substantive
response that may not exceed 10
additional working days, except as
provided below:
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(1) With respect to a request for which
a written notice has extended the time
limits by 10 additional working days,
and the Activity determines that it
cannot make a response determination
within that additional 10 working day
period, the requester shall be notified
and provided an opportunity to limit
the scope of the request so that it may
be processed within the extended time
limit, or an opportunity to arrange an
alternative time frame for processing the
request or a modified request. Refusal
by the requester to reasonably modify
the request or arrange for an alternative
time frame shall be considered a factor
in determining whether exceptional
circumstances exist with respect to
Army Activity’s request backlogs.
Exceptional circumstances do not
include a delay that results from
predictable activity backlogs, unless the
Army Activity demonstrates reasonable
progress in reducing its backlog.
(2) Unusual circumstances that may
justify delay are: The need to search for
and collect the requested records from
other facilities that are separate from the
office determined responsible for a
release or denial decision on the
requested information; the need to
search for, collect, and appropriately
examine a voluminous amount of
separate and distinct records which are
requested in a single request; and the
need for consultation, which shall be
conducted with all practicable speed,
with other agencies having a substantial
interest in the determination of the
request, or among two or more Army
Activities or DoD Components having a
substantial subject-matter interest in the
request.
(3) Army Activities may aggregate
certain requests by the same requester,
or by a group of requesters acting in
concert, if the Army Activity reasonably
believes that such requests actually
constitute a single request, which would
otherwise satisfy the unusual
circumstances set forth in paragraph
(j)(2) of this section, and the requests
involve clearly related matters. Multiple
requests involving unrelated matters
shall not be aggregated. If the requests
are aggregated under these conditions,
the requester or requesters shall be so
notified.
(4) In cases where the statutory time
limits cannot be met and no informal
extension of time has been agreed to, the
inability to process any part of the
request within the specified time should
be explained to the requester with a
request that he agree to await a
substantive response by an anticipated
date. It should be made clear that any
such agreement does not prejudice the
right of the requester to appeal the
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initial decision after it is made. Army
Activities are reminded that the
requester still retains the right to treat
this delay as a de facto denial with full
administrative remedies. Only the
responsible IDA can extend it, and the
IDA must first coordinate with the OGC.
(5) As an alternative to the taking of
formal extensions of time the
negotiation by the cognizant FOIA
coordinating office of informal
extensions in time with requesters is
encouraged where appropriate.
(k) Misdirected requests. Misdirected
requests shall be forwarded promptly to
the Army Activity or other Federal
Agency with the responsibility for the
records requested. The period allowed
for responding to the request
misdirected by the requester shall not
begin until the request is received by the
Army Activity that manages the records
requested.
(l) Records of non-U.S. Government
source. When a request is received for
a record that falls under exemption 4,
that was obtained from a non-U.S.
Government source, or for a record
containing information clearly
identified as having been provided by a
non-U.S. Government source, the source
of the record or information [also known
as ‘‘the submitter’’ for matters pertaining
to proprietary data under 5 U.S.C. 552,
FOIA, Exemption (b)(4)] and E.O.
12600], shall be notified promptly of
that request and afforded reasonable
time (14 calendar days) to present any
objections concerning the release,
unless it is clear that there can be no
valid basis for objection. This practice is
required for those FOIA requests for
data not deemed clearly exempt from
disclosure under exemption (b)(4) of 5
U.S.C. 552, The FOIA. If, for example,
the record or information was provided
with actual or presumptive knowledge
of the non-U.S. Government source and
established that it would be made
available to the public upon request,
there is no obligation to notify the
source. Any objections shall be
evaluated. The final decision to disclose
information claimed to be exempt under
exemption (b)(4) shall be made by an
official equivalent in rank to the official
who would make the decision to
withhold that information under FOIA.
When a substantial issue has been
raised, the Army Activity may seek
additional information from the source
of the information and afford the source
and requester reasonable opportunities
hsrobinson on PROD1PC70 with RULES2
to present their arguments on the legal
and substantive issues involved prior to
making an agency determination. When
the source seeks a restraining order or
take court action to prevent release of
the record or information, the requester
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shall be notified, and action on the
request normally shall not be taken until
after the outcome of that court action is
known. When the requester brings court
action to compel disclosure, the
submitter shall be promptly notified of
this action.
(1) If the submitted information is a
proposal in response to a solicitation for
a competitive proposal, and the
proposal is in the possession and
control of DA (see 10 U.S.C. 2305(g)),
the proposal shall not be disclosed, and
no submitter notification and
subsequent analysis is required. The
proposal shall be withheld from public
disclosure pursuant to 10 U.S.C. 2305(g)
and exemption (b)(3) of the FOIA. This
statute does not apply to bids,
unsolicited proposals, or any proposal
that is set forth or incorporated by
reference in a contract between an Army
Activity and the offeror that submitted
the proposal. In such situations, normal
submitter notice shall be conducted
except for sealed bids that are opened
and read to the public. The term,
proposal, means information contained
in or originating from any proposal,
including a technical, management, or
cost proposal submitted by an offeror in
response to solicitation for a
competitive proposal, but does not
include an offeror’s name or total price
or unit prices when set forth in a record
other than the proposal itself. Submitter
notice, and analysis as appropriate, are
required for exemption (b)(4) matters
that are not specifically incorporated in
10 U.S.C. 2305(g).
(2) If the record or information was
submitted on a strictly voluntary basis,
absent any exercised authority that
prescribes criteria for submission, and
after consultation with the submitter, it
is absolutely clear that the record or
information would customarily not be
released to the public, the submitter
need not be notified. Examples of
exercised authorities prescribing criteria
for submission are statutes, Executive
Orders, regulations, invitations for bids,
requests for proposals, and contracts.
Records or information submitted under
these authorities are not voluntary in
nature. When it is not clear whether the
information was submitted on a
voluntary basis, absent any exercised
authority, and whether it would
customarily be released to the public by
the submitter, notify the submitter and
ask that it describe its treatment of the
information, and render an objective
evaluation. If the decision is made to
release the information over the
objection of the submitter, notify the
submitter and afford the necessary time
to allow the submitter to seek a
restraining order, or take court action to
PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\22FER2.SGM
9241
prevent release of the record or
information.
(3) The coordination provisions of
this section also apply to any non-U.S.
Government record in the possession
and control of the Army or DoD from
multi-national organizations, such as
the North Atlantic Treaty Organization
(NATO), United Nations Commands, the
North American Aerospace Defense
Command (NORAD), the Inter-American
Defense Board, or foreign governments.
Coordination with foreign governments
under the provisions of this section may
be made through Department of State, or
the specific foreign embassy.
(m) File of initial denials. Copies of all
initial withholdings or denials shall be
maintained by each Army Activity in a
form suitable for rapid retrieval,
periodic statistical compilation, and
management evaluation. Records denied
for any of the reasons contained in
§ 518.20 shall be maintained for a
period of six years to meet the statute
of limitations requirement. Records will
be maintained in accordance with AR
25–400–2.
(n) Special mail services. Army
Activities are authorized to use
registered mail, certified mail,
certificates of mailing, and return
receipts. However, their use should be
limited to instances where it appears
advisable to establish proof of dispatch
or receipt of FOIA correspondence. The
requester shall be notified that they are
responsible for the full costs of special
services.
(o) Receipt accounts. The Treasurer of
the United States has established two
accounts for FOIA receipts, and all
money orders or checks remitting FOIA
fees should be made payable to the U.S.
Treasurer. These accounts shall be used
for depositing all FOIA receipts, except
receipts for industrially funded and
non-appropriated funded activities.
Components are reminded that the
below account numbers must be
preceded by the appropriate disbursing
office two digit prefix. Industrially
funded and non-appropriated funded
activity FOIA receipts shall be
deposited to the applicable fund.
(1) Receipt Account 3210 Sale of
Publications and Reproductions, FOIA.
This account shall be used when
depositing funds received from
providing existing publications and
forms that meet the Receipt Account
Series description found in Federal
Account Symbols and Titles. Deliver
collections within 30 calendar days to
the servicing finance and accounting
office.
(2) Receipt Account 3210 Fees and
Other Charges for Services, FOIA. This
account is used to deposit search fees,
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fees for duplicating and reviewing (in
the case of commercial requesters)
records to satisfy requests that could not
be filled with existing publications or
forms.
§ 518.17 Appeals.
(a) General. If the official designated
by the Army Activity to make initial
determinations on requests for records
declines to provide a record because the
official considers it exempt under one or
more of the exemptions of the FOIA,
that decision may be appealed by the
requester, in writing, to a designated
appellate authority. The appeal should
be accompanied by a copy of the letter
denying the initial request. Such
appeals should contain the basis for
disagreement with the initial refusal.
Appeal procedures also apply to the
disapproval of a fee category claim by a
requester, disapproval of a request for
waiver or reduction of fees, disputes
regarding fee estimates, review on an
expedited basis a determination not to
grant expedited access to agency
records, for no record determinations
when the requester considers such
responses adverse in nature, not
providing a response determination to a
FOIA request within the statutory time
limits, or any determination found to be
adverse in nature by the requester. Upon
an IDA’s receipt of a no records
determination appeal, the IDA will
direct the records custodian to conduct
another records search and certify, in
writing, that it has made a good faith
effort that reasonably could be expected
to produce the information requested. If
no records are again found, the original
no records certificate will be forwarded
to the IDA for inclusion in the appeals
packet. When denials have been made
under the provisions of the FOIA and
the PA, and the denied information is
contained in a PA system of records,
appeals shall be processed under both
the FOIA and the PA. If the denied
information is not maintained in a PA
system of records, the appeal shall be
processed under the FOIA. If a request
is merely misaddressed, and the
receiving Army Activity or DoD
Component simply advises the requester
of such and refers the request to the
appropriate Army or DoD Component,
this shall not be considered a no record
determination.
(1) Appeals of adverse determinations
from denial of records or ‘‘no record’’
determination, received by Army IDAs
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must be forwarded through the denying
IDA to the Secretary of the Army
(ATTN: OGC). On receipt of an appeal,
the IDA will—
(i) Send the appeal to the Office of the
Secretary of the Army, OGC, together
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with a copy of the documents that are
the subject of the appeal. The cover
letter will list all attachments and
describe from where the records were
obtained, i.e., a PA system of records
(including the applicable systems
notice, or other. If a file does not
include documentation described
below, include the tab, and insert a page
marked ‘‘not applicable’’ or ‘‘not used.’’
The order and contents of FOIA file
attachments follow: (Tab A or 1) The
original FOIA request and envelope (if
applicable); (Tab B or 2) The IDA denial
letter; (Tab C or 3) Copies of all records
entirely released, single-sided; (Tab D or
4) Copies of administrative processing
documents, including extension letters
and ‘‘no records’’ certificates, in
chronological order; (Tab E or 5) Copies
of all records partially denied or
completely denied, single-sided. For
records partially denied, mark in yellow
highlighter (or other readable
highlighter) those portions withheld;
and (Tab F or 6) Legal opinions(s); and
(ii) Assist the OGC as requested
during his or her consideration of the
appeal.
(2) Appeals of denial of records made
by the OGC, AAFES, shall be made to
the Secretary of the Army when the
Commander, AAFES, is an Army officer.
Appeals of denial of records made by
the OGC, AAFES, shall be made to the
Secretary of the Air Force when the
Commander is an Air Force officer.
(b) Time of receipt. A FOIA appeal
has been received by an Army Activity
when it reaches the office of an
appellate authority having jurisdiction,
the OGC. Misdirected appeals should be
referred expeditiously to the OGC.
(c) Time limits. The requester shall be
advised to file an appeal so that it is
postmarked no later than 60 calendar
days after the date of the initial denial
letter. If no appeal is received, or if the
appeal is postmarked after the
conclusion of this 60-day period, the
case may be considered closed.
However, exceptions to the above may
be considered on a case-by-case basis. In
cases where the requester is provided
several incremental determinations for a
single request, the time for the appeal
shall not begin until the date of the final
response. Records that are denied shall
be retained for a period of six years to
meet the statute of limitations
requirement. Final determinations on
appeals normally shall be made within
20 working days after receipt. When an
Army Activity has a significant number
of appeals preventing a response
determination within 20 working days,
the appeals shall be processed in a
multitrack processing system, based at a
minimum, on the three processing
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tracks established for initial requests.
All of the provisions of the FOIA apply
also to appeals of initial determinations,
to include establishing additional
processing queues as needed.
(d) Delay in responding to an appeal.
If additional time is needed due to the
unusual circumstances the final
decision may be delayed for the number
of working days (not to exceed 10), that
were not used as additional time for
responding to the initial request. If a
determination cannot be made and the
requester notified within 20 working
days, the appellate authority shall
acknowledge to the requester, in
writing, the date of receipt of the appeal,
the circumstances surrounding the
delay, and the anticipated date for
substantive response. Requesters shall
be advised that, if the delay exceeds the
statutory extension provision or is for
reasons other than the unusual
circumstances they may consider their
administrative remedies exhausted.
They may, however, without
prejudicing their right of judicial
remedy, await a substantive response.
The Army Activity will continue to
process the case expeditiously.
(e) Response to the requester. When
the appellate authority (OGC) makes a
final determination to release all or a
portion of records withheld by an IDA,
a written response and a copy of the
records so released should be forwarded
promptly to the requester after
compliance with any preliminary
procedural requirements, such as
payment of fees. Final refusal of an
appeal must be made in writing by the
appellate authority or by a designated
representative. The response, at a
minimum, shall include the following:
(1) The basis for the refusal shall be
explained to the requester in writing,
both with regard to the applicable
statutory exemption or exemptions
invoked under provisions of the FOIA,
and with respect to other appeal
matters;
(2) When the final refusal is based in
whole or in part on a security
classification, the explanation shall
include a determination that the record
meets the cited criteria and rationale of
the governing Executive Order, and that
this determination is based on a
declassification review, with the
explanation of how that review
confirmed the continuing validity of the
security classification;
(3) The final denial shall include the
name and title or position of the official
responsible for the denial;
(4) In the case of appeals for total
denial of records, the response shall
advise the requester that the information
being denied does not contain
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meaningful portions that are reasonably
segregable;
(5) When the denial is based upon an
exemption 3 statute, the response, in
addition to citing the statute relied upon
to deny the information, shall state
whether a court has upheld the decision
to withhold the information under the
statute, and shall contain a concise
description of the scope of the
information withheld; or
(6) The response shall advise the
requester of the right to judicial review.
(f) Consultation. Final refusal
involving issues not previously resolved
or that the Army Activity knows to be
inconsistent with rulings of other DoD
Components ordinarily should not be
made before consultation with the Army
OGC. Tentative decisions to deny
records that raise new or significant
legal issues of potential significance to
other Agencies of the Government shall
be provided to the Army OGC.
§ 518.18 Judicial actions.
(a) This section states current legal
and procedural rules for the
convenience of the reader. The
statements of rules do not create rights
or remedies not otherwise available, nor
do they bind the DA or DoD to
particular judicial interpretations or
procedures. A requester may seek an
order from a U.S. District Court to
compel release of a record after
administrative remedies have been
exhausted; i.e., when refused a record
by the head of a Component or an
appellate designee or when the Army
Activity has failed to respond within the
time limits prescribed by the FOIA and
in this part.
(b) The requester may bring suit in the
U.S. District Court in the district, in
which the requester resides or is the
requester’s place of business, in the
district in which the record is located,
or in the District of Columbia.
(c) The burden of proof is on the
Army Activity to justify its refusal to
provide a record. The court shall
evaluate the case de novo (anew) and
may elect to examine any requested
record in camera (in private) to
determine whether the denial was
justified.
(d) When an Army Activity has failed
to make a determination within the
statutory time limits but can
demonstrate due diligence in
exceptional circumstances, to include
negotiating with the requester to modify
hsrobinson on PROD1PC70 with RULES2
the scope of their request, the court may
retain jurisdiction and allow the
Activity additional time to complete its
review of the records.
(1) If the court determines that the
requester’s complaint is substantially
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correct, it may require the U. S. to pay
reasonable attorney fees and other
litigation costs.
(2) When the court orders the release
of denied records, it may also issue a
written finding that the circumstances
surrounding the withholding raise
questions whether Army Activity
personnel acted arbitrarily and
capriciously. In these cases, the special
counsel of the Merit Systems Protection
Board shall conduct an investigation to
determine whether or not disciplinary
action is warranted. The Army Activity
is obligated to take the action
recommended by the special counsel.
(3) The court may punish the
responsible official for contempt when
an Army Activity fails to comply with
the court order to produce records that
it determines have been withheld
improperly.
(e) Non-U. S. Government source
information. A requester may bring suit
in an U.S. District Court to compel the
release of records obtained from a non-
government source or records based on
information obtained from a non-
government source. Such source shall
be notified promptly of the court action.
When the source advises that it is
seeking court action to prevent release,
the Army Activity shall defer answering
or otherwise pleading to the
complainant as long as permitted by the
Court or until a decision is rendered in
the court action of the source,
whichever is sooner.
(f) FOIA litigation. Personnel
responsible for processing FOIA
requests at the DoD Component level
shall be aware of litigation under the
FOIA. Such information will provide
management insights into the use of the
nine exemptions by Component
personnel. Whenever a complaint under
the FOIA is filed in an U.S. District
Court, the Army Activity named in the
complaint shall forward a copy of the
complaint by any means to HQDA,
OTJAG (DAJA–LT), with an information
copy to the Army OGC. In the DA,
HQDA OTJAG (DAJA–LT), WASH D.C.
20310–2210 is also responsible for
forwarding this information to the
Office of the Army OGC and to the DA
FOIA/PA Office.
(1) Bases for FOIA Lawsuits. In
general, there are four categories of
complaints in a FOIA lawsuit: failure to
respond to a request within time frames
established in the FOIA statute;
challenge to the adequacy of search for
responsive records; challenge to
application of a FOIA Exemption; and
procedural challenges, such as
application of waiver of fees. The
guidance below is intended to cover all
categories of complaints. In responding
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9243
to litigation support requests, bear in
mind the type of complaint that has
given rise to the lawsuit and provide
information, which addresses the
specific reason(s) for the complaint.
(2) Responsibility for FOIA litigation.
For the Army, under the general
oversight of the OGC, FOIA litigation is
the responsibility of the General
Litigation Branch, Army Litigation
Division. If you are notified of a FOIA
lawsuit involving the Army, contact the
General Litigation Branch immediately
at: U.S. Army Litigation Center, General
Litigation Branch (JALS–LTG), 901
North Stuart Street, Suite 700,
Arlington, VA 22203–1837. The General
Litigation Branch will provide guidance
on gathering information and
assembling a litigation report necessary
to respond to FOIA litigation.
(3) Litigation reports for FOIA
lawsuits. As with any lawsuit, the Army
Litigation Division and DOJ will require
a litigation report. This report should be
prepared with the assistance, and under
the supervision of, the legal advisor. For
general guidance on litigation reports,
see Army Regulation 27–40, paragraph
3–9. Unlike the usual 60-day time
period to respond to complaints under
the Federal Rules of Civil Procedure,
complaints under the FOIA must be
answered within 30 days of the service
of the complaint. Therefore, it is
imperative to contact the Litigation
Division immediately and to begin
preparing the litigation report without
delay.
(4) Specific guidance for FOIA
litigation reports. The following is
specific guidance for preparing a
litigation report in FOIA Litigation. The
required material should be indexed
and assembled under the following
categories:
(i) Statement of facts. (Tab A). Provide
a chronological statement of all facts
related to the FOIA request, beginning
with receipt of the request, responses to
the request, and searches for responsive
records. The statement of facts should
refer to supporting enclosed exhibits
whenever possible.
(ii) Responses to pleadings. (Tab B). If
you have been provided a copy of the
complaint, provide a line-by-line
answer to the factual statements in the
pleadings, along with recommendations
on whether to admit or deny the
allegation.
(iii) Memorandum of law. (Tab C). No
memorandum of law is necessary in
FOIA lawsuits. If records were
withheld, provide a written statement
explaining the FOIA Exemption used to
withhold the information and the
rationale for its application in the
particular facts of your case. Include
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here a copy of any legal review
regarding the withholding of the
records.
(iv) Potential witness information.
(Tab D). List the names, addresses,
telephone number, facsimile number
and e-mail addresses of all potential
witnesses. At a minimum, this must
include all of the following: the FOIA
Officer or Coordinator or other person
responsible for processing FOIA
requests; the individual(s) who actually
conducted the search for responsive
records; the legal advisor(s) who
reviewed or provided advice on the
request; and the point of contact at any
office or agency to which the FOIA
request was referred.
(v) Exhibits. (Tab E). Provide copies of
all correspondence regarding the FOIA
request. This includes all
correspondence between the agency and
the requester, including any enclosures;
any referrals or forwarding of the
request to other agencies or offices;
copies of all documents released to the
requester pursuant to the request in
litigation. If any information is withheld
or redacted, provide a complete copy of
all withheld information. Identify
withheld information by placing
brackets around all information
withheld and note in the margins of the
document the specific FOIA exemption
applied to deny release of the
document; all records and
correspondence forwarded to the IDA, if
applicable; all appeals by the requester;
if the withheld document is classified,
provide a summary of each document
withheld. The Summary of classified
documents should include the
following:
(A) The classification of the
document;
(B) The date of the document;
(C) The number of pages of the
document;
(D) The author or creator of the
document;
(E) The intended or actual recipient of
the document;
(F) The subject of the document and
an unclassified description of the
document sufficient to inform the court
of the nature of the contents of the
document; and
(G) An explanation of the reason for
withholding, including the specific
provision(s) of Executive Order 12,958
which permit classification of the
information.
(vi) Draft declarations. (Tab F). A
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declaration is a statement for use in
litigation made under penalty of perjury
pursuant to specific statutory authority
(28 U.S.C. 1746) which need not be
notarized. Declarations may be used by
the Army to support a motion to dismiss
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or to grant summary judgment.
Depending on the basis for the lawsuit,
with the assistance of their legal
advisor, witnesses should prepare a
draft declaration to be included with the
litigation report.
(vii) The following is some general
guidance on the content of a declaration
in FOIA litigation. Identify the declarant
and describe his or her qualifications
and responsibilities as they relate to the
FOIA; provide a statement indicating
that the declarant is familiar with the
specific request and the general subject
matter of the records; include a
statement of the searcher’s
understanding of the exact nature of the
request, including any modification
(narrowing or expanding the search
based on communications with the
requester); generally, the factual portion
of the declaration should be organized
as a chronological statement beginning
with receipt of the request; provide a
specific description of the system of
records searched; and provide a
description of procedures used to search
for the requested records, (manual
search of records, computer database
search, etc.). This portion of the
declaration is especially important
when no records are found. The
declaration must reflect an adequate and
reasonable search for records in
locations where responsive records are
likely to be found.
(5) Special guidance for initial denial
authorities. If any information was
withheld, the IDA or person with
specific knowledge of the withholding
must provide a specific statement of any
Exemptions to the FOIA, which were
applied to the records.
(i) Withheld records. For withheld
records, describe in reasonably specific
detail all records or parts of records
withheld. If the number of records is
extensive, use an index of the records
and consider numbering the documents
to facilitate reference. It is also
permissible (and frequently helpful) to
include redacted portions of records
withheld as attachments or exhibits to
the declarations.
(ii) Exemptions. Include in the
declaration a specific statement
demonstrating that all the elements of
each FOIA exemption are met.
(iii) Segregation. The FOIA requires
that all information not subject to an
exemption to the FOIA, which can be
reasonably segregated from exempt
information, must be released to FOIA
requesters. In any instance where an
entire document is withheld, the
individual authorizing the withholding
must specifically address that
segregation and release of non-exempt
material was not possible without
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rendering the record essentially
meaningless. If applicable, this issue
must be specifically addressed in the
declaration.
(iv) Sound Legal Basis. Army policy
promotes careful consideration of FOIA
requests and discretionary decisions to
disclose information protected under
the FOIA. Discretionary disclosures
should be made only after full and
deliberate consideration of the
institutional, commercial, and personal
privacy interests that could be
implicated by disclosure of the
information. The decision to withhold
records, in whole or in part, otherwise
exempt from disclosure under the FOIA
must exhibit a sound legal basis or
present an unwarranted risk of adverse
impact on the ability of other agencies
to protect other important records.
Subpart F—Fee Schedule
§ 518.19 General provisions.
(a) Authorities. The FOIA, as
amended; the Paperwork Reduction Act
(44 U.S.C. 35), as amended; the PA of
1974, as amended; the Budget and
Accounting Act of 1921 and the Budget
and Accounting Procedures Act, as
amended (see 31 U.S.C.); and 10 U.S.C.
2328).
(b) Application. The fees described in
this Subpart apply to FOIA requests,
and conform to the Office of
Management and Budget Uniform
Freedom of Information Act Fee
Schedule and Guidelines. They reflect
direct costs for search, review (in the
case of commercial requesters), and
duplication of documents, collection of
which is permitted by the FOIA. They
are neither intended to imply that fees
must be charged in connection with
providing information to the public in
the routine course of business, nor are
they meant as a substitute for any other
schedule of fees, such as DoD 7000.14–
R, which does not supersede the
collection of fees under the FOIA.
Nothing in this subpart shall supersede
fees chargeable under a statute
specifically providing for setting the
level of fees for particular types of
records. A ‘‘statute specifically
providing for setting the level of fees for
particular types of records’’ (5 U.S.C.
552 FOIA, (a)(4)(A)(vi)) means any
statute that enables a Government
Agency such as the GPO or the NTIS, to
set and collect fees. Components should
ensure that when documents that would
be responsive to a request are
maintained for distribution by agencies
operating statutory-based fee schedule
programs such as GPO or NTIS, they
inform requesters of the steps necessary
to obtain records from those sources.
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(1) The term ‘‘direct costs’’ means
those expenditures an Activity actually
makes in searching for, reviewing (in
the case of commercial requesters), and
duplicating documents to respond to a
FOIA request. Direct costs include, for
example, the salary of the employee
performing the work (the basic rate of
pay for the employee plus 16 percent of
that rate to cover benefits), and the costs
of operating duplicating machinery. Not
included in direct costs are overhead
expenses such as costs of space, heating
or lighting the facility in which the
records are stored.
(2) The term ‘‘search’’ includes all
time spent looking, both manually and
electronically, for material that is
responsive to a request. Search also
includes a page-by-page or line-by-line
identification (if necessary) of material
in the record to determine if it, or
portions thereof are responsive to the
request. Activities should ensure that
searches are done in the most efficient
and least expensive manner so as to
minimize costs for both the Activity and
the requester. For example, Activities
should not engage in line-by-line
searches, when duplicating an entire
document known to contain responsive
information, would prove to be the less
expensive and quicker method of
complying with the request. Time spent
reviewing documents in order to
determine whether to apply one or more
of the statutory exemptions is not search
time, but review time.
(3) The term ‘‘duplication’’ refers to
the process of making a copy of a
document in response to a FOIA
request. Such copies can take the form
of paper copy, microfiche, audiovisual,
or machine-readable documentation
(e.g., magnetic tape or disc), among
others. Every effort will be made to
ensure that the copy provided is in a
form that is reasonably useable, the
requester shall be notified that the copy
provided is the best available and that
the Activity’s master copy shall be made
available for review upon appointment.
For duplication of computer-stored
records, the actual cost, including the
operator’s time, shall be charged. In
practice, if an Activity estimates that
assessable duplication charges are likely
to exceed $25.00, it shall notify the
requester of the estimate, unless the
requester has indicated in advance his
or her willingness to pay fees as high as
those anticipated. Such a notice shall
offer a requester the opportunity to
hsrobinson on PROD1PC70 with RULES2
confer with Activity personnel with the
object of reformulating the request to
meet his or her needs at a lower cost.
(4) The term ‘‘review’’ refers to the
process of examining documents located
in response to a FOIA request to
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determine whether one or more of the
statutory exemptions permit
withholding. It also includes processing
the documents for disclosure, such as
excising them for release. Review does
not include the time spent resolving
general legal or policy issues regarding
the application of exemptions. It should
be noted that charges for commercial
requesters may be assessed only for the
initial review. Activities may not charge
for reviews required at the
administrative appeal level of an
exemption already applied. However,
records or portions of records withheld
in full under an exemption, which is
subsequently determined not to apply,
may be reviewed again to determine the
applicability of other exemptions not
previously considered. The costs for
such a subsequent review would be
properly assessable.
(c) Fee restrictions. No fees may be
charged by any Army Activity if the
costs of routine collection and
processing of the fee are likely to equal
or exceed the amount of the fee. With
the exception of requesters seeking
documents for a commercial use,
Activities shall provide the first two
hours of search time, and the first one
hundred pages of duplication without
charge. For example, for a request (other
than one from a commercial requester)
that involved two hours and fifteen
minutes of search time, and resulted in
one hundred and twenty-five pages of
documents, an Activity would
determine the cost of only ten minutes
of search time, and only five pages of
reproduction. If this processing cost was
equal to, or less than the cost to the
Activity for billing the requester and
processing the fee collected, no charges
would result.
(1) Requesters receiving the first two
hours of search and the first one
hundred pages of duplication without
charge are entitled to such only once per
request. Consequently, if an Activity,
after completing its portion of a request,
finds it necessary to refer the request to
a subordinate office, another Army
Activity or DoD Component, or another
Federal Agency for action their portion
of the request, the referring Activity
shall inform the recipient of the referral
of the expended amount of search time
and duplication cost to date.
(2) The elements to be considered in
determining the ‘‘cost of collecting a
fee’’ are the administrative costs to the
Activity of receiving and recording a
remittance, and processing the fee for
deposit in the Department of Treasury’s
special account. The cost to the
Department of Treasury to handle such
remittance is negligible and shall not be
PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\22FER2.SGM
9245
considered in the Activity’s
determinations.
(3) For the purposes of these
restrictions, the word ‘‘pages’’ refers to
paper copies of a standard size, which
will normally be ‘‘81⁄2 x 11’’ or ‘‘11 x
14’’. Thus, requesters would not be
entitled to 100 microfiche or 100
computer disks, for example. A
microfiche containing the equivalent of
100 pages or 100 pages of computer
printout, however, might meet the terms
of the restriction.
(4) In the case of computer searches,
the first two free hours will be
determined against the salary scale of
the individual operating the computer
for the purposes of the search. As an
example, when the direct costs of the
computer central processing unit, input-
output devices, and memory capacity
equal $40.00 (two hours of equivalent
search at the clerical level), amounts of
computer costs in excess of that amount
are chargeable as computer search time.
In the event the direct operating cost of
the hardware configuration cannot be
determined, computer search shall be
based on the salary scale of the operator
executing the computer search.
(d) Fee waivers. Documents shall be
furnished without charge, or at a charge
reduced below fees assessed to the
categories of requesters when the
Activity determines that waiver or
reduction of the fees is in the public
interest because furnishing the
information is likely to contribute
significantly to public understanding of
the operations or activities of DA and is
not primarily in the commercial interest
of the requester.
(1) When assessable costs for a FOIA
request total $15.00 or less, fees shall be
waived automatically for all requesters,
regardless of category.
(2) Decisions to waive or reduce fees
that exceed the automatic waiver
threshold shall be made on a case-by-
case basis. Disclosure of the information
‘‘is in the public interest because it is
likely to contribute significantly to
public understanding of the operations
or activities of the Government.’’
(i) Activities should analyze whether
the subject matter of the request
involves issues that will significantly
contribute to the public understanding
of the operations or activities of DA or
DoD. Requests for records in the
possession of the Army or DoD, which
were originated by non-government
organizations and are sought for their
intrinsic content, rather than
informative value, will likely not
contribute to public understanding of
the operations or activities of either DA
or DoD. An example of such records
might be press clippings, magazine
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articles, or records forwarding a
particular opinion or concern from a
member of the public regarding an
Army or DoD activity. Similarly,
disclosures of records of considerable
age may or may not bear directly on the
current activities of either DA or DoD;
however, the age of a particular record
shall not be the sole criteria for denying
relative significance under this factor. It
is possible to envisage an informative
issue concerning the current activities of
DA or DoD, based upon historical
documentation. Requests of this nature
must be closely reviewed consistent
with the requester’s stated purpose for
desiring the records and the potential
for public understanding of the
operations and activities of DA or DoD.
(ii) The informative value of the
information to be disclosed requires a
close analysis of the substantive
contents of a record, or portion of the
record, to determine whether disclosure
is meaningful, and shall inform the
public on the operations or activities of
DA or DoD. While the subject of a
request may contain information that
concerns operations or activities of DA
or DoD, it may not always hold great
potential for contributing to a
meaningful understanding of these
operations or activities. An example of
such would be a previously released
record that has been heavily redacted,
the balance of which may contain only
random words, fragmented sentences, or
paragraph headings. A determination as
to whether a record in this situation will
contribute to the public understanding
of the operations or activities of DA or
DoD must be approached with caution,
and carefully weighed against the
arguments offered by the requester.
Another example is information already
known to be in the public domain.
Disclosure of duplicative, or nearly
identical information already existing in
the public domain may add no
meaningful new information concerning
the operations and activities of DA or
DoD.
(iii) The contribution to an
understanding of the subject by the
general public is likely to result from
disclosure that will inform, or have the
potential to inform the public, rather
than simply the individual requester or
small segment of interested persons.
The identity of the requester is essential
in this situation in order to determine
whether such requester has the
capability and intention to disseminate
hsrobinson on PROD1PC70 with RULES2
the information to the public. Mere
assertions of plans to author a book,
researching a particular subject, doing
doctoral dissertation work, or indigence
are insufficient without demonstrating
the capacity to further disclose the
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information in a manner that will be
informative to the general public.
Requesters should be asked to describe
their qualifications, the nature of their
research, the purpose of the requested
information, and their intended means
of dissemination to the public.
(iv) Activities must differentiate the
relative significance or impact of the
disclosure against the current level of
public knowledge, or understanding,
which exists before the disclosure. In
other words, will disclosure on a
current subject of wide public interest
be unique in contributing previously
unknown facts, thereby enhancing
public knowledge, or will it basically
duplicate what is already known by the
general public? A decision regarding
significance requires objective
judgment, rather than subjective
determination, and must be applied
carefully to determine whether
disclosure will likely lead to a
significant public understanding of the
issue. Activities shall not make value
judgments as to whether the information
is important enough to be made public.
(3) Disclosure of the information ‘‘is
not primarily in the commercial interest
of the requester.’’
(i) If the request is determined to be
of a commercial interest, Activities
should address the magnitude of that
interest to determine if the requester’s
commercial interest is primary, as
opposed to any secondary personal or
non-commercial interest. In addition to
profit-making organizations, individual
persons or other organizations may have
a commercial interest in obtaining
certain records. Where it is difficult to
determine whether the requester is of a
commercial nature, Activities may draw
inference from the requester’s identity
and circumstances of the request.
Activities are reminded that in order to
apply the commercial standards of the
FOIA, the requester’s commercial
benefit must clearly override any
personal or non-profit interest.
(ii) Once a requester’s commercial
interest has been determined, Activities
should then determine if the disclosure
would be primarily in that interest. This
requires a balancing test between the
commercial interest of the request
against any public benefit to be derived
as a result of that disclosure. Where the
public interest is served above and
beyond that of the requester’s
commercial interest, a waiver or
reduction of fees would be appropriate.
Conversely, even if a significant public
interest exists, and the relative
commercial interest of the requester is
determined to be greater than the public
interest, then a waiver or reduction of
fees would be inappropriate. As
PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\22FER2.SGM
examples, news media organizations
have a commercial interest as business
organizations; however, their inherent
role of disseminating news to the
general public can ordinarily be
presumed to be of a primary interest.
Therefore, any commercial interest
becomes secondary to the primary
interest in serving the public. Similarly,
scholars writing books or engaged in
other forms of academic research, may
recognize a commercial benefit, either
directly, or indirectly (through the
institution they represent); however,
normally such pursuits are primarily
undertaken for educational purposes,
and the application of a fee charge
would be inappropriate. Conversely,
data brokers or others who merely
compile government information for
marketing can normally be presumed to
have an interest primarily of a
commercial nature.
(4) Activities are reminded that the
factors and examples used in this
section are not all inclusive. Each fee
decision must be considered on a case-
by-case basis and upon the merits of the
information provided in each request.
When the element of doubt as to
whether to charge or waive the fee
cannot be clearly resolved, Activities
should rule in favor of the requester.
(5) In addition, the following
additional circumstances describe
situations where waiver or reduction of
fees are most likely to be warranted:
(i) A record is voluntarily created to
prevent an otherwise burdensome effort
to provide voluminous amounts of
available records, including additional
information not requested; or
(ii) A previous denial of records is
reversed in total, or in part, and the
assessable costs are not substantial (e.g.
$15.00—$30.00).
(e) Fee assessment. Fees may not be
used to discourage requesters, and to
this end, FOIA fees are limited to
standard charges for direct document
search, review (in the case of
commercial requesters) and duplication.
(1) In order to be as responsive as
possible to FOIA requests while
minimizing unwarranted costs to the
taxpayer, Activities shall adhere to the
following procedures:
(i) Each request must be analyzed to
determine the category of the requester.
If the Activity determination regarding
the category of the requester is different
than that claimed by the requester, the
Activity should notify the requester to
provide additional justification to
warrant the category claimed, and that
a search for responsive records will not
be initiated until agreement has been
attained relative to the category of the
requester. Absent further category
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 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations
justification from the requester, and
within a reasonable period of time (i.e.,
30 calendar days), the Activity shall
render a final category determination,
and notify the requester of such
determination, to include normal
administrative appeal rights of the
determination. The requester should be
advised that, notwithstanding any
appeal, a search for responsive records
will not be initiated until the requester
indicates a willingness to pay assessable
costs appropriate for the category
determined by the Activity;
(ii) Requesters should submit a fee
declaration appropriate for the below
categories. Commercial requesters
should indicate a willingness to pay all
search, review and duplication costs.
Educational or Noncommercial
Scientific Institution or News Media
requesters should indicate a willingness
to pay duplication charges, if
applicable, in excess of 100 pages if
more than 100 pages of records are
desired. All other requesters should
indicate a willingness to pay assessable
search and duplication costs;
(iii) Activities must be prepared to
provide an estimate of assessable fees if
desired by the requester. While it is
recognized that search situations will
vary among Activities, and that an
estimate is often difficult to obtain prior
to an actual search, requesters who
desire estimates are entitled to such
before committing to a willingness to
pay. Should Activities’ actual costs
exceed the amount of the estimate or the
amount agreed to by the requester, the
amount in excess of the estimate or the
requester’s agreed amount shall not be
charged without the requester’s
agreement;
(iv) No Army Activity may require
advance payment of any fee; i.e.,
payment before work is commenced or
continued on a request, unless the
requester has previously failed to pay
fees in a timely fashion, or the agency
has determined that the fee will exceed
$250.00. As used in this sense, a timely
fashion is 30 calendar days from the
date of billing (the fees have been
assessed in writing) by the Activity;
(v) Where an Activity estimates or
determines that allowable charges that a
requester may be required to pay are
likely to exceed $250.00, the Activity
shall notify the requester of the likely
cost and obtain satisfactory assurance of
full payment where the requester has a
history of prompt payments, or require
hsrobinson on PROD1PC70 with RULES2
an advance payment of an amount up to
the full estimated charges in the case of
requesters with no history of payment;
(vi) Where a requester has previously
failed to pay a fee charged in a timely
fashion (i.e., within 30 calendar days
VerDate Aug<31>2005 14:37 Feb 21, 2006 Jkt 208001
from the date of the billing), the Activity
may require the requester to pay the full
amount owed, plus any applicable
interest, or demonstrate that he or she
has paid the fee, and to make an
advance payment of the full amount of
the estimated fee before the Activity
begins to process a new or pending
request from the requester. Interest will
be at the rate prescribed in 31 U.S.C.
3717, and confirmed with respective
Finance and Accounting Offices;
(vii) After all work is completed on a
request, and the documents are ready
for release, Activities may request
payment before forwarding the
documents, particularly for those
requesters who have no payment
history, or for those requesters who have
failed previously to pay a fee in a timely
fashion (i.e., within 30 calendar days
from the date of the billing;
(viii) The administrative time limits of
the FOIA will begin only after the
Activity has received a willingness to
pay fees and satisfaction as to category
determination, or fee payments (if
appropriate); and
(ix) Activities may charge for time
spent searching for records, even if that
search fails to locate records responsive
to the request. Activities may also
charge search and review (in the case of
commercial requesters) time if records
located are determined to be exempt
from disclosure. In practice, if the
Activity estimates that search charges
are likely to exceed $25.00, it shall
notify the requester of the estimated
amount of fees, unless the requester has
indicated in advance his or her
willingness to pay fees as high as those
anticipated. Such a notice shall offer the
requester the opportunity to confer with
Activity personnel with the object of
reformulating the request to meet his or
her needs at a lower cost.
(2) Commercial Requesters. Fees shall
be limited to reasonable standard
charges for document search, review
and duplication when records are
requested for commercial use.
Requesters must reasonably describe the
records sought.
(i) The term ‘‘commercial use’’ request
refers to a request from, or on behalf of
one who seeks information for a use or
purpose that furthers the commercial,
trade, or profit interest of the requester
or the person on whose behalf the
request is made. In determining whether
a requester properly belongs in this
category, Activities must determine the
use to which a requester will put the
documents requested. Moreover, where
an Activity has reasonable cause to
doubt the use to which a requester will
put the records sought, or where that
use is not clear from the request itself,
PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\22FER2.SGM
9247
Activities should seek additional
clarification before assigning the request
to a specific category.
(ii) When Activities receive a request
for documents for commercial use, they
should assess charges, which recover
the full direct costs of searching for,
reviewing for release, and duplicating
the records sought. Commercial
requesters (unlike other requesters) are
not entitled to two hours of free search
time, nor 100 free pages of reproduction
of documents. Moreover, commercial
requesters are not normally entitled to a
waiver or reduction of fees based upon
an assertion that disclosure would be in
the public interest. However, because
use is the exclusive determining criteria,
it is possible to envision a commercial
enterprise making a request that is not
for commercial use. It is also possible
that a non-profit organization could
make a request that is for commercial
use. Such situations must be addressed
on a case-by-case basis.
(3) Educational institution requesters.
Fees shall be limited to only reasonable
standard charges for document
duplication (excluding charges for the
first 100 pages) when the request is
made by an educational institution
whose purpose is scholarly research.
Requesters must reasonably describe the
records sought. The term ‘‘educational
institution’’ refers to a pre-school, a
public or private elementary or
secondary school, an institution of
graduate high education, an institution
of undergraduate higher education, an
institution of professional education,
and an institution of vocational
education, which operates a program or
programs of scholarly research. Fees
shall be waived or reduced in the public
interest if the criteria above have been
met.
(4) Non-Commercial Scientific
Institution Requesters. Fees shall be
limited to only reasonable standard
charges for document duplication
(excluding charges for the first 100
pages) when the request is made by a
non-commercial scientific institution
whose purpose is scientific research.
Requesters must reasonably describe the
records sought. The term ‘‘non-
commercial scientific institution’’ refers
to an institution that is not operated on
a ‘‘commercial’’ basis and that is
operated solely for the purpose of
conducting scientific research, the
results of which are not intended to
promote any particular product or
industry.
(5) Activities shall provide documents
to requesters for the cost of duplication
alone, excluding charges for the first
100 pages. To be eligible for inclusion
in these categories, requesters must
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 9248 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations
show that the request is being made
under the auspices of a qualifying
institution and that the records are not
sought for commercial use, but in
furtherance of scholarly (from an
educational institution) or scientific
(from a non-commercial scientific
institution) research.
(6) Representatives of the news media.
Fees shall be limited to only reasonable
standard charges for document
duplication (excluding charges for the
first 100 pages) when the request is
made by a representative of the news
media. Requesters must reasonably
describe the records sought.
(i) The term ‘‘representative of the
news media’’ refers to any person
actively gathering news for an entity
that is organized and operated to
publish or broadcast news to the public.
The term ‘‘news’’ means information
that is about current events or that
would be of current interest to the
public. Examples of news media entities
include television or radio stations
broadcasting to the public at large and
publishers of periodicals (but only in
those instances when they can qualify
as disseminators of ‘‘news’’) who make
their products available for purchase or
subscription by the general public.
These examples are not meant to be all-
inclusive. Moreover, as traditional
methods of news delivery evolve (e.g.,
electronic dissemination of newspapers
through telecommunications services),
such alternative media would be
included in this category. In the case of
‘‘freelance’’ journalists, they may be
regarded as working for a news
organization if they can demonstrate a
solid basis for expecting publication
through that organization, even though
not actually employed by it. A
publication contract would be the
clearest proof, but Activities may also
look to the past publication record of a
requester in making this determination.
(ii) To be eligible for inclusion in this
category, a requester must meet the
criteria in paragraph (e) (6) (i) of this
section, and his or her request must not
be made for commercial use. A request
for records supporting the news
dissemination function of the requester
shall not be considered to be a request
that is for a commercial use. For
example, a document request by a
newspaper for records relating to the
investigation of a defendant in a current
criminal trial of public interest could be
presumed to be a request from an entity
hsrobinson on PROD1PC70 with RULES2
eligible for inclusion in this category,
and entitled to records at the cost of
reproduction alone (excluding charges
for the first 100 pages).
(iii) ‘‘Representative of the news
media’’ does not include private
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libraries, private repositories of
Government records, information
vendors, data brokers or similar
marketers of information whether to
industries and businesses, or other
entities.
(7) All Other Requesters. Activities
shall charge requesters who do not fit
into any of the categories, fees which
recover the full direct cost of searching
for and duplicating records, except that
the first two hours of search time and
the first 100 pages of duplication shall
be furnished without charge. Requesters
must reasonably describe the records
sought. Requests from subjects about
themselves will continue to be treated
under the fee provisions of the Privacy
Act of 1974, which permit fees only for
duplication. Activities are reminded
that this category of requester may also
be eligible for a waiver or reduction of
fees if disclosure of the information is
in the public interest as defined in
paragraph (6) (ii) in this section.
(f) Aggregating requests. Except for
requests that are for a commercial use,
an Activity may not charge for the first
two hours of search time or for the first
100 pages of reproduction. However, a
requester may not file multiple requests
at the same time, each seeking portions
of a document or documents, solely in
order to avoid payment of fees. When an
Activity reasonably believes that a
requester or, on rare occasions, a group
of requesters acting in concert, is
attempting to break a request down into
a series of requests for the purpose of
avoiding the assessment of fees, the
agency may aggregate any such requests
and charge accordingly. One element to
be considered in determining whether a
belief would be reasonable is the time
period in which the requests have
occurred. For example, it would be
reasonable to presume that multiple
requests of this type made within a 30-
day period had been made to avoid fees.
For requests made over a longer period,
however, such a presumption becomes
harder to sustain and Activities should
have a solid basis for determining that
aggregation is warranted in such cases.
Activities are cautioned that before
aggregating requests from more than one
requester, they must have a concrete
basis on which to conclude that the
requesters are acting in concert and are
acting specifically to avoid payment of
fees. In no case may Activities aggregate
multiple requests on unrelated subjects
from one requester.
(g) Debt Collection Act of 1982 (Pub.
L. 97–365). The Debt Collection Act
provides for a minimum annual rate of
interest to be charged on overdue debts
owed the Federal Government.
Activities may levy this interest penalty
PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\22FER2.SGM
for any fees that remain outstanding 30
calendar days from the date of billing
(the first demand notice) to the
requester of the amount owed. The
interest rate shall be as prescribed in 31
U.S.C. 3717. Activities should verify the
current interest rate with respective
Finance and Accounting Offices. After
one demand letter has been sent, and 30
calendar days have lapsed with no
payment, Activities may submit the debt
to respective Finance and Accounting
Offices for collection pursuant to the
Debt Collection Act.
(h) Computation of fees. The fee
schedule shall be used to compute the
search, review (in the case of
commercial requesters) and duplication
costs associated with processing a given
FOIA request. Costs shall be computed
on time actually spent. Neither time-
based nor dollar-based minimum
charges for search, review and
duplication are authorized. The
appropriate fee category of the requester
shall be applied before computing fees.
DD Form 2086 (Record of Freedom of
Information (FOI) Processing Cost) will
be used to annotate fees for processing
FOIA information.
(i) Refunds. In the event that an
Activity discovers that it has
overcharged a requester or a requester
has overpaid, the Activity shall
promptly refund the charge to the
requester by reimbursement methods
that are agreeable to the requester and
the Activity.
§ 518.20 Collection of fees and fee rates.
(a) Collection of fees. Collection of
fees will be made at the time of
providing the documents to the
requester or recipient when the
requester specifically states that the
costs involved shall be acceptable or
acceptable up to a specified limit that
covers the anticipated costs. Collection
of fees may not be made in advance
unless the requester has failed to pay
previously assessed fees within 30
calendar days from the date of the
billing by the Activity, or the Activity
has determined that the fee will be in
excess of $250.
(b) Search time.
(1) Costs for manual searches.
Hourly rate
Type Grade ($)
Clerical .......... E9/GS 8 and 20
below.
Professional ... 1–06/GS 9– 44
GS 15.
Executive ....... 07/ST/SL/ 75
SES–1 and
above.
Contractor ...... ....................... 44
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 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations
(2) Computer Search. Fee assessments
for computer search consists of two
parts; individual time (hereafter referred
to as human time), and machine time.
(i) Human time. Human time is all the
time spent by humans performing the
necessary tasks to prepare the job for a
machine to execute the run command.
If execution of a run requires monitoring
by a human, that human time may be
also assessed as computer search. The
terms ‘‘programmer/operator’’ shall not
be limited to the traditional
programmers or operators. Rather, the
terms shall be interpreted in their
broadest sense to incorporate any
human involved in performing the
computer job (e.g. technician,
administrative support, operator,
programmer, database administrator, or
action officer).
(ii) Machine time. Machine time
involves only direct costs of the Central
Processing Unit (CPU), input/output
devices, and memory capacity used in
the actual computer configuration. Only
this CPU rate shall be charged. No other
machine related costs shall be charged.
In situations where the capability does
not exist to calculate CPU time, no
machine costs can be passed on to the
requester. When CPU calculations are
not available, only human time costs
shall be assessed to requesters. Should
Army Activities lease computers, the
services charged by the lesser shall not
be passed to the requester under the
FOIA.
(c) Duplication Costs.
Cost per page
Type (cents)
Pre-printed material .. .02
Office Copy ............... .15
Microfiche .................. .25
Computer copies Actual cost of dupli-
(tapes, discs or cating the tape,
printouts). disc or printout (in-
cludes operator’s
time and cost of
the medium)
(d) Review Time Costs (in the case of
commercial requesters).
Hourly
Type Grade
($)
Clerical .......... E9/GS 8 and
below.
Professional ... 01–06/GS 9–
GS 15.
Executive ....... 07/ST/SL/
SES–1 and
hsrobinson on PROD1PC70 with RULES2
above.
Contractor ...... .......................
(e) Audiovisual Documentary
Materials. Search costs are computed as conduct the search and to duplicate the
for any other record. Duplication cost is records responsive to the request. This
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the actual direct cost of reproducing the
material, including the wage of the
person doing the work. Audiovisual
materials provided to a requester need
not be in reproducible format or quality.
Army audiovisual materials are referred
to as ‘‘visual information.’’
(f) Other Records. Direct search and
duplication cost for any record not
described above shall be computed in
the manner described for audiovisual
documentary material.
(g) Costs for Special Services.
Complying with requests for special
services is at the discretion of the
Activities. Neither the FOIA, nor its fee
structure cover these kinds of services.
Therefore, Activities may recover the
costs of special services requested by
the requester after agreement has been
obtained in writing from the requester to
pay for one or more of the following
services:
(1) Certifying that records are true
copies; and/or
(2) Sending records by special
methods such as express mail, etc.
§ 518.21 Collection of fees and fee rates
for technical data.
(a) Fees for technical data. Technical
data, other than technical data that
discloses critical technology with
military or space application, if required
to be released under the FOIA, shall be
released after the person requesting
such technical data pays all reasonable
costs attributed to search, duplication
and review of the records to be released.
Technical data, as used in this section,
means recorded information, regardless
of the form or method of the recording
of a scientific or technical nature
(including computer software
documentation). This term does not
include computer software, or data
incidental to contract administration,
such as financial and/or management
information. Army Activities shall
retain the amounts received by such a
release, and it shall be merged with and
available for the same purpose and the
same time period as the appropriation
from which the costs were incurred in
complying with request. All reasonable
rate costs as used in this sense are the full
costs to the Federal Government of
rendering the service, or fair market
20 value of the service, whichever is
higher. Fair market value shall be
44
determined in accordance with
75 commercial rates in the local
geographical area. In the absence of a
known market value, charges shall be
44 based on recovery of full costs to the
Federal Government. The full costs shall
include all direct and indirect costs to
Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\22FER2.SGM
9249
cost is to be differentiated from the
direct costs allowable for other types of
information released under the FOIA.
DD Form 2086–1 will be used to
annotate fees for technical data. The
form is available through normal
publication channels.
(b) Waiver. Activities shall waive the
payment of costs described in paragraph
(a) of this section, which are greater
than the costs that would be required for
release of this same information if the
request is made by a citizen of the
United States or a United States
corporation, and such citizen or
corporation certifies that the technical
data requested is required to enable it to
submit an offer, or determine whether it
is capable of submitting an offer to
provide the product to which the
technical data relates to the United
States or a contractor with the United
States. However, Activities may require
the citizen or corporation to pay a
deposit in an amount equal to not more
than the cost of complying with the
request, which will be refunded upon
submission of an offer by the citizen or
corporation;
(1) The release of technical data is
requested in order to comply with the
terms of an international agreement; or,
(2) The Activity determines that such
a waiver is in the interest of the United
States.
(c) Fee Rates.
(1) Costs for a manual search of
technical data.
Hourly rate
Type Grade
($)
Clerical .......... E9/GS 8 and 13.25
below.
Minimum ....................... 8.30
Charge.
Notes: Professional and Executive (To be
established at actual hourly rate prior to
search. A minimum charge will be established
at 1⁄2 hourly rates.
(2) Computer search is based on the
total cost of the cpu, input-output
devices, and memory capacity of the
actual computer configuration. The
wage for the computer operator and/or
programmer determining how to
conduct, and subsequently executing
the search will be recorded as part of the
computer search.
(d) Duplication Costs for technical
data.
Cost
Type ($)
Aerial photograph, maps, specifica-
tions, permits, charts, blueprints,
and other technical engineering
documents ..................................... 2.50
Engineering data (microfilm).
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 9250 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations
Cost
Type
a. Aperture cards
Silver duplicate negative, per card ...
When key punched and verified, per
card ...............................................
Diazo duplicate negative, per card ...
When key punched and verified, per
card ...............................................
b. 35 mm roll film, per frame .....
c. 16 mm roll film, per frame .....
d. Paper prints (engineering
drawings), each .....................
e. Paper reprints of microfilm in-
dices, each .............................
(e) Review time costs of technical
data.
Hourly
Type Grade
Clerical .............. E9/GS 8 and
below.
Minimum Charge ...........................
Notes: Professional and Executive (To be
established at actual hourly rate prior to
search. A minimum charge will be established
at 1⁄2 hourly rates.
(f) Other Technical Data Records.
Charges for any additional services not
specifically consistent with Volume 11A
of DoD 7000.14–R, shall be made by
Activities at the following rates:
Cost
Type
1. Minimum charge for office copy
(up to six images) .........................
2. Each additional image ..................
3. Each typewritten page ..................
4. Certification and validation with
seal, each ......................................
5. Hand-drawn plots and sketches,
each hour or fraction thereof ........
Subpart G—Reports
§ 518.22 Reports control.
(a) General. (1) The Annual FOIA
Report is mandated by the statute and
reported on a fiscal year basis. Due to
the magnitude of the requested statistics
and the need to ensure accuracy of
reporting, Army Activities shall track
this data as requests are processed. This
will also facilitate a quick and accurate
compilation of statistics. Army
Activities shall forward their report to
DA, FOIA/PA Office, no later than
October 15 following the fiscal year’s
close. It may be submitted electronically
and via hard copy accompanied by a
hsrobinson on PROD1PC70 with RULES2
computer diskette. In turn, DA and DoD
will produce a consolidated report for a
submission to the Attorney General and
ensure that a copy of the consolidated
report is placed on the Internet for
public access.
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(2) Existing Army standards and
($) registered data elements are to be
utilized to the greatest extent possible in
accordance with the provisions of DoD
.75 8320.1–M, ‘‘Data Administration
Procedures.’’
.85
.65 (3) The reporting requirement
outlined is assigned Report Control
.75 Symbol DD–DA&M(A)1365, FOIA
.50 Report to Congress.
.45 (b) Reporting time. Each DA IDA shall
prepare statistics and accumulate
1.50 paperwork for the preceding fiscal year
on those items prescribed for the annual
.10
report. The IDAs will follow guidelines
below and submit the information to the
DA, FOIA/PA Office, on or before the
15th day of each October.
(1) Each reporting activity will submit
rate the information requested on the DD
($) Form 2564, ‘‘Annual Report Freedom of
Information Act.’’ The form is available
13.25
through normal publication channels.
8.30
(2) Each IDA will submit the
information requested on the DD Form
2564, excluding items 3, 4, and 9c.
(3) The Judge Advocate General
(DAJA) and Chief of Engineers (COE)
will submit the information requested
on the Form DD 2564, item 9c.
(4) The General Counsel (SAGC) will
submit the information requested on the
DD Form 2564, items 3 and 4.
(5) The DA, FOIA/PA Office will
compile the data submitted in the
($) Army’s Annual Report. This report will
be submitted to the DoD Office for
Freedom of Information and Security
3.50 Review on or before the 30th day of
.10 each November.
3.50
§ 518.23 Annual report content.
5.20 The current edition of DD Form 2564
shall be used to submit Activity input.
12.00 Instructions for completion follows:
(a) ITEM 1 Initial Request
Determinations. Please note that initial
PA requests, which are also processed
as initial FOIA requests, are reported
here.
(1) Total requests processed. Enter the
total number of initial FOIA requests
responded to (completed) during the
fiscal year. This should include pending
cases at the end of the prior fiscal year,
Total Actions is the sum of Items 1b
through 1e, on the DD Form 2564. This
total may exceed Total Requests
Processed.
(2) Granted in full. Enter the total
number of initial FOIA requests
responded to that were granted in full
during the fiscal year. (This may include
requests granted by your office, yet still
requiring action by another office).
(3) Denied in part. Enter the total
number of initial FOIA requests
responded to and denied in part based
on one or more of the FOIA exemptions.
PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\22FER2.SGM
(Do not report ‘‘Other Reason
Responses’’ as a partial denial here,
unless a FOIA exemption is also used).
(4) Denied in full. Enter the total
number of initial FOIA requests
responded to and denied in full based
on one or more of the FOIA exemptions.
(Do not report ‘‘Other Reason
Responses’’ as denials here, unless a
FOIA exemption is also used).
(5) ‘‘Other reason’’ responses. Enter
the total number of initial FOIA requests
in which you were unable to provide all
or part of the requested information
based on an ‘‘Other Reason’’ response.
(6) Total actions. Enter the total
number of FOIA actions taken during
the fiscal year. This number will be the
sum of items 1b, through 1e. Total
Actions must be equal to or greater than
the number of Total Requests Processed.
(b) ITEM 2 Initial Request Exemptions
and Other Reasons. (1) Exemptions
invoked on initial request
determinations. Enter the number of
times an exemption was claimed for
each request that was denied in full or
in part. Since more than one exemption
may be claimed when responding to a
single request, this number will be equal
to or greater than the sum of (3) and (4),
above. The (b)(7) exemption is reported
by subcategories (A) through (F): (A)
Interfere with Enforcement; (B) Fair
Trial Right; (C) Invasion of Privacy; (D)
Protect Confidential Source; (E) Disclose
Techniques, and (F) Endanger Life or
Safety.
(2) ‘‘Other Reasons’’ Cited on Initial
Determinations. Identify the ‘‘Other
Reason’’ response cited when
responding to a FOIA request and enter
the number of times each was claimed.
(i) No records. Enter the number of
times a reasonable search of files failed
to identify records responsive to subject
request.
(ii) Referrals. Enter the number of
times a request was referred to another
DoD Component or Federal Agency for
action.
(iii) Request withdrawn. Enter the
number of times a request and/or appeal
was withdrawn by a requester.
(iv) Fee-related reason. Requester is
unwilling to pay the fees associated
with a request; the requester is past due
in the payment of fees from a previous
FOIA request; or the requester disagrees
with a fee estimate.
(v) Records not reasonably described.
Enter the number of times a FOIA
request could not be acted upon since
the record had not been described with
sufficient particularity to enable the
Army Activity to locate it by conducting
a reasonable search.
(vi) Not a proper FOIA request for
some other reason. Enter the number of
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 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations
times the requester has failed
unreasonably to comply with
procedural requirements, other than fee-
related imposed by this part or an Army
Activity’s supplementing regulation.
(vii) Not an agency record. Enter the
number of times a requester was
provided a response indicating the
requested information was not a record
within the meaning of the FOIA and this
part.
(viii) Duplicate request. Record
number of duplicate requests closed for
that reason (e.g., request for the same
information by the same requester). This
includes identical requests received via
different means (e.g., electronic mail,
facsimile, mail, and courier) at the same
or different times.
(ix) Other (Specify). Any other reason
a requester does not comply with
published rules, other than those
reasons outlined in paragraphs (b)(2)(i)
through (viii) of this section.
(x) Total. Enter the sum of paragraphs
(b)(2)(i) through (ix) of this section, in
the block provided on the form (total
other reasons). This number will be
equal to or greater than the number in
item 1e on the report form, since more
than one reason may be claimed for
each ‘‘Other Reason’’ response.
(3) (b)(3) Statutes invoked on initial
determinations. Identify the number of
times you have used a specific statute to
support each (b)(3) exemption. List the
statutes used to support each (b)(3)
exemption; the number of instances in
which the statute was cited; note
whether or not the statute has been
upheld in a court hearing; and provide
a concise description of the material
withheld in each individual case by the
statute’s use. Ensure you cite the
specific sections of the acts invoked.
The total number of instances reported
will be equal to or greater than the total
number of (b)(3) exemptions listed in
Item 2a on the report form.
(c) ITEM 3 Appeal determinations.
Please note that PA appeals, which are
also processed as FOIA appeals, are
reported here.
(1) Total appeal responses. Enter the
total number of FOIA appeals
responded to (completed) during the
fiscal year.
(2) Granted in full. Enter the total
number of FOIA appeals responded to
and granted in full during the year.
(3) Denied in part. Enter the total
number of FOIA appeals responded to
and denied in part based on one or more
hsrobinson on PROD1PC70 with RULES2
of the FOIA exemptions. (Do not report
‘‘Other Reason Responses’’ as a partial
denial here, unless a FOIA exemption is
used also.)
(4) Denied in full. Enter the total
number of FOIA appeals responded to
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and denied in full based on one or more
of the FOIA exemptions. (Do not report
‘‘Other Reason Responses’’ as denials
here, unless a FOIA exemption is used
also).
(5) ‘‘Other reason’’ responses. Enter
the total number of FOIA appeals in
which you were unable to provide the
requested information based on an
‘‘Other Reason’’ response.
(6) Total actions. Enter the total
number of FOIA appeal actions taken
during the fiscal year. This number will
be the sum of items 3b, through 3e, and
should be equal to or greater than the
number of Total Appeal Responses, item
3a on the report form.
(d) ITEM 4 Appeal exemptions and
other reasons. (1) Exemptions Invoked
on Appeal Determinations. Enter the
number of times an exemption was
claimed for each appeal that was denied
in full or in part. Since more than one
exemption may be claimed when
responding to a single request, this
number will be equal to or greater than
the sum of items 3c, and 3d on the
report form. Note that the (b)(7)
exemption is reported by subcategory
(A) through (F): (A) Interfere with
Enforcement; (B) Fair Trial Right; (C)
Invasion of Privacy; (D) Protect
Confidential Source; (E) Disclose
Techniques, and (F) Endanger Life or
Safety.
(2) ‘‘Other reasons’’ cited on appeal
determinations. Identify the ‘‘Other
Reason’’ response cited when
responding to a FOIA appeal and enter
the number of times each was claimed.
This number may be equal to or
possibly greater than the number in item
3e on the report form, since more than
one reason may be claimed for each
‘‘Other Reason’’ response.
(3) (b)(3) Statutes invoked on appeal
determinations. Identify the number of
times a specific statute has been used to
support each (b)(3) exemption identified
in item 4a on the report form DD 2564.
List the statutes used to support each
(b)(3) exemption; the number of
instances in which the statute was cited;
note whether or not the statute has been
upheld in a court hearing; and provide
a concise description of the material
withheld in each individual case by the
statute’s use. Ensure citation to the
specific sections of the statute invoked.
The total number of instances reported
will be equal to or greater than the total
number of (b)(3) exemptions listed in
Item 4a on the report form.
(e) ITEM 5 Number and median age
of initial cases pending:
(1) Total initial cases pending:
(i) Beginning and ending report
period: Midnight, 2400 hours,
September 30, of the Preceding Year—
PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\22FER2.SGM
9251
or—0001 hours, October 1, is the
beginning of the report period.
Midnight, 2400 hours, is the close of the
reporting period.
(ii) The number for the beginning
report period must be the same number
reported as of the end of the report
period from the previous report.
(2) Median age of initial requests
pending: Report the median age in days
(including holidays and weekends) of
initial requests pending.
(3) Examples of median calculation.
(i) If given five cases aged 10, 25, 35,
65, and 100 days from date of receipt as
of the previous September 30th, the
total requests pending is five (5). The
median age (days) of open requests is
the middle, not average value, in this set
of numbers (10, 25, 35, 65, and 100), 35
(the middle value in the set).
(ii) If given six pending cases, aged
10, 20, 30, 50, 120, and 200 days from
date of receipt, as of the previous
September 30th, the total requests
pending is six (6). The median age
(days) of open requests 40 days (the
mean [average] of the two middle
numbers in the set, in this case the
average of middle values 30 and 50).
(4) Accuracy of Calculations.
Activities must ensure the accuracy of
calculations. As backup, the raw data
used to perform calculations should be
recorded and preserved. This will
enable recalculation of median [and
mean values] as necessary. Activities
may require subordinate elements to
forward raw data, as deemed necessary
and appropriate.
(5) Average. If an Activity believes
that ‘‘average’’ (mean) processing time is
a better measure of performance, then
report ‘‘averages’’ (means) as well as
median values (e.g., with data reflected
and plainly labeled on plain bond as an
attachment to the report). However,
‘‘average’’ (mean) values will not be
included in the consolidated Army
report unless all Activities report it.
(f) ITEM 6 Number of Initial Requests
Received During the Fiscal Year. Enter
the total number of initial FOIA requests
received during the reporting period
(fiscal year being reported).
(g) ITEM 7 Types of Requests
Processed and Median Age. Information
is reported for three types of initial
requests completed during the reporting
period: Simple; Complex; and
Expedited Processing. The following
items of information are reported for
these requests:
(1) Total Number of Initial Requests.
Enter the total number of initial requests
processed [completed] during the
reporting period (fiscal year) by type
(Simple, Complex and Expedited
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 9252 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations
Processing) in the appropriate row on
the form.
(2) Median Age (Days). Enter the
median number of days [calendar days
including holidays and weekends]
required to process each type of case
(Simple, Complex and Expedited
Processing) during the period in the
appropriate row on the form.
TABLE 7–1.—SAMPLE COMPUTATION OF WORK YEARS FOR FULL TIME STAFF
Number of
Employee
Smith, Jane ........................................
Public, John Q. ...................................
Brown, Tom ........................................
Totals ...........................................
(2) Number of part time staff. Enter
the number of personnel your agency
TABLE 7–2.—COMPUTATION OF WORK YEARS FOR PART TIME STAFF
Number of
Employee
Public, John Q. ...................................
White, Sally ........................................
Peters, Ron ........................................
Totals ...........................................
year) equals
(3) Estimated Litigation Cost. Report
your best estimate of litigation costs for
the FY. Include all direct and indirect
expenses associated with FOIA
litigation in U.S. District Courts, U.S.
Circuit Courts of Appeals, and the U.S.
Supreme Court.
(4) Total Program Cost. Report the
total cost of FOIA program operation
within your agency. Include your
litigation costs in this total. While you
do not have to report detailed cost
information as in the past, you should
be able to explain the techniques by
which you derived you agency’s total
cost figures if the need arises.
(i) Before the close of each fiscal year,
the DoD OFOISR will dispatch the latest
hsrobinson on PROD1PC70 with RULES2
OSD Composite Rate Chart for military
personnel to DoD Components. This
information may be used in computing
military personnel costs.
(ii) Army Activities should compute
their civilian personnel costs using rates
VerDate Aug<31>2005 15:05 Feb 21, 2006 Jkt 208001
(3) Example. Given seven initial collected from the public during the
requests, multitrack—simple completed fiscal year. This includes search, review
during the fiscal year, aged 10, 25, 35, and reproduction costs only.
65, 79, 90 and 400 days when (i) ITEM 9 FOIA program costs. (1)
completed. The total number of requests Number of full time staff. Enter the
completed was seven (7). The median number of personnel your agency had
age (days) of completed requests is 65, dedicated to working FOIA full time
the middle value in the set. during the fiscal year. This will be
(h) ITEM 8 Fees collected from the expressed in work-years [man-years].
public. Enter the total amount of fees For example: ‘‘5.1, 3.2, 1.0, 6.5, et al.’’
months Work-years Note
worked
6 .50 Hired full time at middle of fiscal year
4 .34 Dedicated to full time FOIA processing last quarter of the fiscal year
12 1.00 Worked FOIA full time all fiscal year
22 1.84
had dedicated to working FOIA part expressed in work-years [man-years].
time during the fiscal year. This will be For example: ‘‘5.1, 3.2, 1.0, 6.5, et al.’’
months Work-years Note
worked
200 .1 Amount of time devoted to part time FOIA processing before becoming full
time FOIA processor in previous example
400 .2 Processed FOIAs part time while working as paralegal in General Coun-
sel’s Office
1,000 .5 Part time employee dedicated to FOIA processing
1,600/2,000
(hours
worked in a
0.8 work-
years
from local Office of Personnel (2) AR 20–1 Inspector General Activities
Management (OPM) Salary Tables and and Procedures;
shall add 16% for benefits. (3) AR 25–1 The Army Information
Management;
(iii) Data captured on DD Form 2086, (4) AR 25–11 Record Communications and
and DD Form 2086–1, shall be the Privacy Communications System;
summarized and used in computing (5) AR 25–400–2 The Army Records
total costs. Information Management System (ARIMS);
(iv) An overhead rate of 25% shall be (6) AR 27–20 Claims;
added to all calculated costs for (7) AR 36–2 Audit Reports and Follow-up;
(8) AR 40–66 Medical Record
supervision, space, and administrative Administration and Health Care
support. Documentation;
(j) ITEM 10 Authentication. The (9) AR 40–68 Quality Assurance
official that approves the agency’s report Administration;
submission to DA will sign and date; (10) AR 40–400 Patient Administration;
enter typed name and duty title; and (11) AR 195–2 Criminal Investigation
provide both the agency’s name and Activities;
phone number for questions about the (12) AR 25–71 The Army Privacy Program;
(13) AR 360–1 The Army Public Affairs
report. The consolidated Annual FOIA Program;
Report will be made available to the (14) AR 380–5 Department of the Army
public in electronic format by DoD. Information Security Program;
(15) AR 381–10 U.S. Army Intelligence
APPENDIX A to Part 518—References
Activities;
(a) References. (16) AR 381–12 Subversion and Espionage
(1) AR 1–20 Legislative Liaison; Directed Against The U.S. Army (SAEDA);
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 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations
(17) AR 381–20 The Army
Counterintelligence Program;
(18) AR 530–1 Operations Security
(OPSEC);
(19) AR 600–85 Army Substance Abuse
Program; and
(20) AR 608–18 The Army Family
Advocacy Program.
(b) Related publications. A related
publication is merely a source of additional
information. The user does not have to read
it to understand this part.
(1) AR 10–5 Headquarters, Department of
the Army;
(2) AR 27–10 Military Justice;
(3) AR 27–40 Litigation;
(4) AR 27–60 Intellectual Property;
(5) AR 60–20 Army and Air Force
Exchange Service Operating Policies AFR
147–14;
(6) AR 70–31 Standards for Technical
Reporting;
(7) AR 190–45 Law Enforcement Reporting;
(8) AR 380–10 Foreign Disclosure and
Contacts with Foreign Representatives;
(9) AR 381–45 Investigative Records
Repository;
(10) AR 385–40 Accident Reporting and
Records;
(11) DA Pam 25–30 Consolidated Army
Publications and Index Forms;
(12) DA Pam 25–51 The Army Privacy
Program—System of Records Notices and
Exemption Rules;
(13) DoD Directive 5100.3 Support of the
Headquarters of Combatant and Subordinate
Joint Commands, November 15, 1999;
(14) DoD Directive 5230.24 Distribution
Statements on Technical Documents, March
18, 1987;
(15) DoD Directive 5230.25 Withholding of
Unclassified Technical Data From Public
Disclosure, November 6, 1984;
(16) DoD Directive 5230.9 Clearance of
DoD Information for Public Release, April 9,
1996;
(17) DoD Directive 5400.4 Provision of
Information to Congress, January 30, 1978;
(18) DoD Directive 5400.7 DoD Freedom of
Information Act (FOIA) Program, September
29, 1997;
(19) DoD Directive 5400.11 DOD Privacy
Program, December 13, 1999;
(20) DoD Directive 7650.1 Government
Accountability Office (GAO) and Comptroller
General Access to Records, September 11,
1997;
(21) DoD Directive 7650.2 Government
Accountability Office Reviews and Reports,
July 13, 2000;
(22) DoD Directive 8910.1 Management and
Control of Information Requirements, June
11, 1993;
(23) DoD Federal Acquisition Regulation
Supplement (DFARS), Part 227 Patents, Data,
and Copyrights. See also 48 CFR part 227;
(24) Department of Defense Financial
Management Regulation (Reimbursable
Operations, Policy and Procedures) Volume
11A, April 2003 authorized by DoD
hsrobinson on PROD1PC70 with RULES2
Instruction 7000.14, DoD Financial
Management Policy and Procedures,
November 15, 1992;
(25) DoD Instruction 5400.10 OSD
Implementation of DoD Freedom of
Information Act Program, January 24, 1991;
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(26) DoD 5200.1–R Information Security
Program, January 1997, authorized by DoD
Directive 5200.1, December 13, 1996, DoD
Information Security Program;
(27) DoD 5400.7–R DoD Freedom of
Information Act Program, September 4, 1998;
(28) DoD 5400.11–R Department of Defense
Privacy Program, August 1983, authorized by
DoD Directive 5400.11, December 13, 1999,
DoD Privacy Program;
(29) Executive Order 12600 Predisclosure
Notification Procedures for Confidential
Commercial Information, June 23, 1987, 52
FR 23781;
(30) Public Law 86–36 National Security
Information Exemption, Codified at 50 U.S.C.
402, as amended;
(31) Public Law 104–191 Health Insurance
Portability and Accountability Act of 1996,
Codified at 42 U.S.C. 1171–1179, as
amended;
(32) Section 822 of the National Defense
Authorization Act for FY 90 and 91 (Pub. L.
101–189, November 29, 1989: 103 Stat. 1382,
1503);
(33) 5 U.S.C. 551–559, Administrative
Procedures Act;
(34) 5 U.S.C. 552, as amended: public
information; agency rules, opinions, orders,
records, and proceedings. (FOIA);
(35) 5 U.S.C. 552a, as amended: records
about individuals, (PA of 1974);
(36) 10 U.S.C. 128, Physical Protection of
Special Nuclear Material: Limitation on
Dissemination of Unclassified Information;
(37) 10 U.S.C. 130, Authority to Withhold
from Public Disclosure Certain Technical
Data;
(38) 10 U.S.C. 130(b), Personnel in
Overseas, Sensitive, or Routinely Deployable
Units: nondisclosure of personally
identifying information;
(39) 10 U.S.C. 1102(f), Confidentiality of
Medical Quality Assurance Records:
Qualified Immunity for Participants;
(40) 10 U.S.C. 2305(g) Prohibition on
Release of Contractor Proposals;
(41) 10 U.S.C. 2320–2321, Rights in
Technical Data;
(42) 10 U.S.C. 2328, Release of Technical
Data under Freedom of Information Act:
Recovery of Costs;
(43) 17 U.S.C. 106, Exclusive Rights in
Copyrighted Works;
(44) 18 U.S.C. 798, Disclosure of Classified
Information;
(45) 18 U.S.C. 3500, The Demands for
Production of Statements and Reports of
Witnesses (The Jencks Act);
(46) 31 U.S.C. 3717, Interest and Penalty on
Claims;
(47) 32 CFR part 518, The Army FOIA
Program;
(48) 35 U.S.C. 181–188, Secrecy of Certain
Inventions and Filing of Application in
Foreign Country;
(49) 41 U.S.C. 423, Restrictions on
Disclosing and Obtaining Contractor Bid or
Proposal Information or Source Selection
Information;
(50) 42 U.S.C. 2162, Classification and
Declassification of Restricted Data;
(51) 44 U.S.C. 3301–3324, Disposal of
Records;
(52) 45 CFR part 164, Security and Privacy
of Individually Identifiable Health
Information; and
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9253
(53) 50 U.S.C. 403–3, War and National
Defense, Protection of Intelligence Sources
and Methods.
APPENDIX B to Part 518—Addressing
FOIA Requests
(a) General. Army records may be
requested from those Army officials who are
listed in 32 CFR part 518 (see appendix A).
Contact the DA FOIA/PA Office, to
coordinate the referral of requests if there is
uncertainty as to which Army activity may
have the records. Send requests to particular
installations or organizations as follows:
(1) Current publications and records of DA
field commands, installations, and
organizations. See also: http://
books.army.mil/.
(2) Send the request to the commander of
the command, installation, or organization, to
the attention of the FOIA Official.
(3) Consult AR 25–400–2 (ARIMS) for more
detailed listings of all record categories kept
in DA offices.
(4) Contact the installation or organization
public affairs officer for help if you cannot
determine the official within a specific
organization to whom your request should be
addressed.
(b) Department of the Army publications.
Send requests for current administrative,
training, technical, and supply publications
to the National Technical Information
Service, U.S. Department of Commerce, 5285
Port Royal Road, Springfield, VA 22161.
NTIS handles general public requests for
unclassified, uncopyrighted, and
nondistribution-restricted Army publications
not sold through the Superintendent of
Documents.
(c) Military personnel records. Send
requests for military personnel records of
information as follows:
(1) Army Reserve personnel not on active
duty and retired personnel—Commander,
U.S. Army Human Resources Command, St.
Louis, 1 Reserve Way, St. Louis, MO 63132–
5200.
(2) Army officer personnel discharged or
deceased after July 1, 1917 and Army
enlisted personnel discharged or deceased
after November 1, 1912—Director, National
Personnel Records Center, 9700 Page Ave.,
St. Louis, MO 63132–5100.
(3) Army personnel separated before the
dates specified in paragraph (2), above—Old
Military and Civilian Records Unit (Archives
1), National Archives and Records
Administration, Washington, DC 20408–
0001.
(4) Army National Guard officer
personnel—Chief, National Guard Bureau.
Army National Guard enlisted personnel—
Adjutant General of the proper State.
(5) Active duty commissioned and warrant
officer personnel—Commander, U.S. Army
Human Resources Command, ATTN: AHRC–
FOI, Alexandria, VA 22332–0404. Active
duty enlisted personnel—Commander, U.S.
Army Enlisted Records and Evaluation
Center, ATTN: PCRE–RP, 8899 East 56th
Street, Indianapolis, IN 46249–5301.
(d) Medical records.
(1) Medical records of non-active duty
military personnel. Use the same addresses
as for military personnel records.
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(2) Medical records of military personnel
on active duty. Address the medical
treatment facility where the records are kept.
If necessary request locator service.
(3) Medical records of civilian employees
and all dependents. Address the medical
treatment facility where the records are kept.
If the records have been retired, send
requests to the Director, National Personnel
Records Center, Civilian Records Facility,
111 Winnebago St., St. Louis, MO 63118–
4199.
(e) Legal records.
(1) Records of general courts-martial and
special courts-martial in which bad conduct
discharge was approved. For cases not yet
forwarded for appellate review, apply to the
staff judge advocate of the command having
jurisdiction over the case. For cases
forwarded for appellate review and for old
cases, apply to the U.S. Army Legal Services
Agency, ATTN: JALS–CCO, 901 North Stuart
Street, Arlington, VA 22203.
(2) Records of special courts-martial not
involving a bad conduct discharge. These
records are kept for 10 years after completion
of the case. If the case was completed within
the past three years, apply to the staff judge
advocate of the headquarters where it was
reviewed. If the case was completed from 3
to 10 years ago, apply to the National
Personnel Records Center (Military Records),
9700 Page Ave., St. Louis, MO 63132–5100.
If the case was completed more than 10 years
ago, the only evidence of conviction is the
special courts-martial order in the person’s
permanent records.
(3) Records of summary courts-martial.
Locally maintained records are retired 3
years after action of the supervisory
authority. Request records of cases less than
3 years old from the staff judge advocate of
the headquarters where the case was
reviewed. After 10 years, the only evidence
of conviction is the summary courts-martial
order in the person’s permanent records.
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(4) Requests submitted under paragraphs
(e) (2) and (3), of this appendix. These
requests will be processed in accordance
with subpart E of this part. The IDA is The
Judge Advocate General, HQDA (DAJA–CL),
Washington, DC 20310–2200.
(5) Administrative settlement of claims.
Apply to the Chief, U.S. Army Claims
Service, ATTN: JACS–TC, Building 4411,
Llewellyn Avenue, Fort George G. Meade,
MD 20755–5360.
(6) Records involving debarred or
suspended contractors. Apply to U.S. Army
Legal Services Agency (JALS–PF), 901 North
Stewart Street, Arlington, VA 22203.
(7) Records of all other legal matters (other
than records kept by a command,
installation, or organization staff judge
advocate). Apply to HQDA (DAJA–AL),
Washington, DC 20310–2200.
(f) Civil works program records. Civil
works records include those relating to
construction, operation, and maintenance for
the improvement of rivers, harbors, and
waterways for navigation, flood control, and
related purposes, including shore protection
work by the Army. Apply to the proper
division or district office of the Corps of
Engineers. If necessary to determine the
proper office, contact the Commander, U.S.
Army Corps of Engineers, 20 Massachusetts
Avenue, ATTN: CECC–K, Washington, DC
20314–1000.
(g) Civilian personnel records. Send
requests for personnel records of current
civilian employees to the employing
installation. Send requests for personnel
records of former civilian employees to the
Director, National Personnel Records Center,
Civilian Records Facility, 111 Winnebago St.,
St. Louis, MO 63118–4199.
(h) Procurement records. Send requests for
information about procurement activities to
the contracting officer concerned or, if not
feasible, to the procuring activity. If the
contracting officer or procuring activity is not
known, send inquiries as follows:
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(1) Army Materiel Command procurement:
Commander, U.S. Army Materiel Command,
ATTN: AMCID–F, 5001 Eisenhower Ave.,
Alexandria, VA 22333–0001.
(2) Corps of Engineers procurement:
Commander, U.S. Army Corps of Engineers,
20 Massachusetts Avenue, ATTN: CECC–K,
Washington, DC 20314–1000.
(3) All other procurement: HQDA (DAJA–
KL), 2200 Army Pentagon, Washington, DC
20310–2200.
(i) Criminal investigation files. Send
requests involving criminal investigation
files to the Commander, U.S. Army Criminal
Investigation Command, ATTN: CICR–FP,
6010 6th St., Bldg. #1465, Ft. Belvoir, VA
22060–5585. Only the Commanding General,
USACIDC, can release any USACIDC-
originated criminal investigation file.
(j) Personnel security investigation files
and general Army intelligence records. Send
requests for personnel security investigation
files, intelligence investigation and security
records, and records of other Army
intelligence matters to the Commander, U.S.
Army Intelligence and Security Command,
ATTN: IAMG–CIC–FOI/PO, 4552 Pike Road,
Fort George G. Meade, MD 20755–5995.
(k) Inspector General records. Send
requests involving records within the
Inspector General system to HQDA (SAIG–
ZXL), 1700 Army Pentagon, Washington, DC
20310–1700. AR 20–1 governs such records.
(l) Army records in Government records
depositories. Non-current Army records are
in the National Archives of the United States,
Washington, DC 20408–0001; in Federal
Records Centers of NARA; and in other
records depositories. Requesters must write
directly to the heads of these depositories for
copies of such records. A list of pertinent
records depositories is published in AR 25–
400–2, table 10–1.
[FR Doc. 06–1499 Filed 2–21–06; 8:45 am]
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